December 2002 • Vol 2, No. 11 •

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 The struggle of Jose Padilla for the most elementary rights has been long and frustrating. For the last six months, he has been unable to meet with his lawyers simply because the U.S. prosecutors wouldn’t let him. They said he didn’t have the right to a lawyer!

This month, a federal judge ruled that at least Padilla could communicate with his defense. This is a victory for the defense, but a very small one.

The Associated Press story carried a classically ambiguous headline where it is difficult to tell who won.

—Ed.

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Judge Rules Against Violation of Rights in Alleged ‘Dirty Bomb’ Plot

 

A federal court has the authority to decide whether a former Chicago gang member accused of plotting with terrorists to detonate a radioactive “dirty” bomb was properly detained as an enemy combatant, a judge ruled Wednesday.

Until he makes that decision, U.S. District Judge Michael Mukasey said, Jose Padilla may meet with his lawyers. Padilla, a U.S. citizen, had been barred from meeting with attorneys since he was declared an enemy combatant in June.

The ruling was a blow to the government, which had argued that Padilla, a U.S. citizen, had no right to challenge its actions in court because of his alleged status as an enemy combatant.

However, the judge did agree that the government has the power to detain unlawful combatants.

Padilla, a U.S. citizen, had been barred from meeting with attorneys since he was declared an enemy combatant in June.

President Bush’s spokesman, Ari Fleischer, said White House lawyers were studying the voluminous ruling to determine the administration’s position.

“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.

The government has maintained that Padilla has no rights as an enemy combatant. It also said he could use contact with his lawyers to unwittingly pass messages to coconspirators, but Mukasey said rules could be crafted to avoid that possibility.

According to the government, Padilla twice met with senior al-Qaida operatives in Pakistan in March and discussed a plot to detonate a radiological weapon in the United States.

He was arrested May 8 at Chicago’s O’Hare airport on a material witness warrant issued by a grand jury. He has been held in a Navy brig since he was declared an enemy combatant in June. The government says that declaration allows it to hold him without formal criminal charges.

Padilla’s lawyers, Donna Newman and Andrew Patel, say he is being held illegally. Newman said Wednesday she was pleased with Mukasey’s ruling.

“It is a significant decision. It’s certainly a thorough decision,’’ the defense lawyer said. “I need to review it.’’

Although the opinion opened a legal window for lawyers to fight on Padilla’s behalf, the judge wrote supportively of the government’s powers.

“The president ... has both constitutional and statutory authority to exercise the powers of commander in chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil,’’ Mukasey wrote.

He said he would later resolve the issue of whether Padilla was lawfully detained and whether President Bush has evidence to support his finding that Padilla was an enemy combatant.

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—The Associated Press, December 4, 2002

A large number of so-called illegal combatants held in Guantanamo refused to eat February 28, 2002 after guards forced one to remove a makeshift turban during prayers. Prisoners at the camp were not allowed to wear turbans “because they could conceal weapons,” said a spokesman for the U.S. military in Miami. The strikers won, getting their rights to worship in the customary manner and copies of the Koran were given out. January 11 file photo by Shane T. Mccoy