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Court to Rule on âEnemy Combatantâ Label
A federal appeals judge said Monday it would be "a sea change" in the Constitution to allow the Bush administration to designate a U.S. citizen suspected in an alleged dirty bomb plot as an enemy combatant.
| What'd they call 'em at Andersonville? |
In a critical showdown between the government and civil rights lawyers, two members of a three-judge federal panel seemed hesitant to embrace the governmentâs reasoning for why Jose Padilla, 33, should be held indefinitely without access to a lawyer and without being charged. Padilla, a Muslim, is accused of plotting with al-Qaida to detonate a "dirty bomb," which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was taken into custody in May 2002, and has spent most of the time since then in a naval brig in Charleston, S.C. In the two-hour hearing before the appeals panel Monday, Deputy Solicitor General Paul D. Clement suggested that the urgency of the war against terrorism necessitated such moves. "Al-Qaida made the battlefields the United States and theyâve given every indication theyâre trying to make the United States the battlefield again," he said. The hearing marked the first time a U.S. government official has said a limited number of enemy combatants could eventually have access to an attorney. Clement told the judges that combatants such as Padilla — a U.S. citizen being held on U.S. soil — could get a lawyer once their value as intelligence sources has been exhausted. But Judge Barrington D. Parker Jr. said he believed the power to designate a U.S. citizen as an enemy combatant rested with Congress, rather than the president.
Thatâs shaky, the Constitution makes the President the commander of the armed forces and thus director of the war effort.
Giving such power to the executive branch with only limited review by the courts, he said, would be "a sea change in the constitutional life of this country and ... unprecedented in civilized society." Said Judge Rosemary S. Pooler, another member of the panel: "If, in fact, the battlefield is the United States, I think Congress has to say that, and I donât think they have yet." Later, she added, "As terrible as 9/11 was, it didnât repeal the Constitution."
| Doesn't sound like it nudged certain judges into deep thought, either... |
Specifically, the government was asking the court to overturn a finding by U.S. District Court Chief Judge Michael Mukasey that Padilla is entitled to meet with his lawyers and contest being designated as an enemy combatant. Jenny Martinez, a Stanford Law School professor who argued on Padillaâs behalf, said the government believed it could designate anyone, even a citizen, an enemy combatant at any time. "This new power government is looking for is entirely unprecedented," she said.
So was 9/11, Jenny.
The third judge on the panel, Richard C. Wesley, suggested the case shouldnât have been brought in Manhattan. "This should be litigated in South Carolina," Wesley snapped.
| "Too hot for me to handle. Let somebody else get lynched for letting a dirty bomber off after somebody manages to pop a dirty bomb." |
The judges werenât expected to issue their ruling for weeks if not longer. While two of three judges expressed doubts about the governmentâs arguments, they could still opt to refer the case to another court, as Wesley suggested.
Or they could hear it en banc.
Padilla was arrested at Chicagoâs OâHare airport as he returned from Pakistan. The government said he had proposed to Abu Zubaydah, then al-Qaidaâs top terrorism coordinator, to steal radioactive material to detonate a dirty bomb in the United States. Only two other people have been designated enemy combatants since the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who has been accused of being an al-Qaida sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.
Iâm torn by this. Proper thing to do (says me) would be to charge Padilla with treason, give him a lawyer, and put him on trial. I donât think folks would be fooled by his excuses.
Posted by: Steve White 2003-11-18 |
