By Steve Fainaru and Dan Eggen Washington Post Staff Writers Thursday, December 5, 2002; Page A01
A U.S. citizen accused of plotting to explode a radiological "dirty bomb" in the United States must be granted access to an attorney to challenge his detention as an enemy combatant, a federal judge in New York ruled yesterday.
The ruling, part of a broad, 102-page decision by Michael B. Mukasey, chief judge for New York's Southern District, rejected the Bush administration's assertion that allowing Jose Padilla access to his attorney would impede intelligence gathering and jeopardize national security.
Mukasey upheld the president's right to designate enemy combatants -- including U.S. citizens -- in the war on terrorism. However, he dismissed as "gossamer speculation" the government's concerns that Padilla could pass messages to terrorists through his lawyer, and said his ability to defend himself would be "destroyed utterly" if he is denied counsel.
"Padilla's need to consult with a lawyer is obvious," Mukasey wrote. "He is held incommunicado at a military facility. His lawyer has been told that there is no guarantee that even her correspondence to him would get through."
Administration officials took heart in Mukasey's support of President Bush's authority to identify and apprehend enemy combatants within the United States, with relatively little judicial review. Such authority is critical, they say, for stopping potentially dangerous terrorists who have not carried out attacks or been formally charged with crimes.
Mukasey said he would deal later with whether Bush has sufficient evidence to support his designation of Padilla as an enemy combatant, and whether that evidence has since "been mooted by events."
White House spokesman Ari Fleischer said administration lawyers were studying the ruling in order to determine a course of action. "I do note the court did uphold the president's constitutional authority to direct the military to detain unlawful enemy combatants in order to protect the American people in this war on terrorism," Fleischer said.
But Justice Department officials conceded privately that the ruling was a blow to the government's argument that Padilla and other enemy combatants should have no access to an attorney, and that the order seemed to leave open the possibility of detailed review of the case by a federal court.
"Obviously, there are things in here that we are not pleased with," one official said.
Lucas Guttentag, an attorney with the American Civil Liberties Union, which filed a brief on Padilla's behalf, called the decision "a critical repudiation of the Bush administration's claim of virtually unbridled power to unilaterally detain an American citizen and to hold him incommunicado indefinitely."
The Padilla case is one of several working their way through the legal system to test the Bush administration's claim of broad powers to wage a war on terrorism. Yesterday, the full federal appeals court in Philadelphia, reaffirming the position of a three-judge panel, upheld the legality of closed-door immigration hearings for terror suspects.
Padilla has been held without charges in a naval brig in Charleston, S.C., since Bush declared him an enemy combatant seven months ago. His attorney, Donna R. Newman, has been unable to see him and said Pentagon officials told her that they could not guarantee he would receive any of her correspondence.
Padilla was taken into custody May 8 after arriving at Chicago's O'Hare International Airport. U.S. officials allege that Padilla, while traveling in Afghanistan and Pakistan over the past two years, met with senior al Qaeda operatives and discussed his involvement in terrorist operations in the United States, including the detonation of a "radiological dispersal device," also known as a dirty bomb.
Padilla was flown to New York as a potential "material witness" to testify before a grand jury on terrorism. However, after Newman challenged the detention, Bush declared him an enemy combatant June 9, and Padilla was flown to Charleston.
The principal evidence cited by the government to hold Padilla is a declaration by Michael H. Mobbs, a Defense Department special adviser. Newman has complained that her inability to meet with Padilla makes it impossible to present evidence in response to the allegations contained in the declaration.
Yesterday, Newman described the decision as "very significant" because Mukasey "recognized Padilla's right to counsel."
A similar issue has been raised by Yaser Esam Hamdi, who was captured with Taliban forces in Afghanistan last year. Based on a separate declaration by Mobbs, Hamdi also has been designated an "enemy combatant" and held in a military jail without charges or access to a lawyer. The Justice Department has argued against allowing the federal public defender, Frank W. Dunham Jr., a visit with Hamdi, and the case is now before the U.S. Court of Appeals for the 4th Circuit.
Mukasey, a Reagan appointee, has been publicly supportive of the government's prosecution of the war on terrorism. He has personally signed several arrest warrants to detain terrorism suspects as material witnesses for grand jury proceedings.
Mukasey ordered prosecutors to negotiate with the defense on ground rules for Padilla's access to counsel, and to report the results Dec. 30.
In his decision, Mukasey said "the central issue" in the case was whether "the president has the authority to designate as an unlawful combatant an American citizen, captured on American soil, and detain him without trial."
The president did have that right, Mukasey wrote, rejecting Padilla's argument that the Constitution prohibits the indefinite detention of a U.S. citizen. The president, in his role as commander in chief, can designate Americans as enemy combatants, Mukasey ruled, adding that it was not necessary to address concerns that Padilla's detention, like the war on terrorism, could go on indefinitely.
"At some point in the future, when operations against al Qaeda fighters end, or the operational capacity of al Qaeda is effectively destroyed, there may be occasion to debate the legality of continuing to hold prisoners based on their connection to al Qaeda," Mukasey wrote.
The government has not contested Padilla's right to challenge his detention, only that he be denied access to an attorney. However, Mukasey wrote that without counsel he would be unable to mount an adequate challenge.
Neal Sonnett, a Miami defense attorney who heads an American Bar Association task force on enemy combatants, called the ruling a "mixed bag" because it upholds the government's contention that the president has the clear authority to designate enemy combatants regardless of where they are captured.
Yet Sonnett and others said granting Padilla access to an attorney, and the judge's assertion of his authority to conduct a limited review of the detention, mark an important limitation of the government's position.
"Nobody is arguing that enemy combatants or people who want to damage this country should be free to walk the streets," Sonnett said. "But they also shouldn't be held incommunicado indefinitely without access to a lawyer and a chance to say, 'It's not me, I'm the wrong guy.' "
Staff writer Tom Jackman contributed to this report.
<http://www.washingtonpost.com/wp-dyn/articles/A7833-2002Dec4.html> -- Yoshie
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