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Judge weighs rights of 'dirty bomb' suspect Padilla
From Phil Hirschkorn
NEW YORK (CNN) -- Attorneys for accused "dirty bomb" suspect Jose Padilla, being held by the U.S. military as an "enemy combatant," are asking a federal judge to defer a decision on Padilla's custody until their client has a chance to respond to the scant public evidence against him. In court papers submitted Tuesday, defense attorneys Donna Newman and Andrew Patel argued that "Padilla should be granted the fundamental right to have his voice heard by this court." U.S. District Judge Michael Mukasey is considering a motion by Newman and Patel to free Padilla, a U.S. citizen, arguing that his detention is unconstitutional. But prosecutors contend that Padilla has no constitutional right to meet with an attorney or take his case to federal court. They said in court papers filed Monday that the right to counsel does not apply to Padilla, because he has not been charged with any crime, and President Bush's decision to detain him as an enemy combatant in time of war "is a military and political judgment not subject to reassessment by the courts." Attorney General John Ashcroft has alleged that Padilla, 31, who was detained in May after arriving at Chicago's O'Hare International Airport from overseas, was part of a scheme by al Qaeda to explode a conventional bomb laced with radioactive material, possibly in Washington, D.C. After Padilla had been detained for a month as a material witness in a federal facility in New York City, Bush declared him an enemy combatant and transferred him to a Navy brig in Charleston, South Carolina. Mukasey last week asked the attorneys on both sides for additional written arguments to help him decide whether Padilla's case should be returned to his Manhattan courtroom, shifted to a federal court in South Carolina, or remain in the military's hands. Newman and Patel have argued that Padilla ought to be returned to New York and that the government should be forced to comply with standard criminal court procedures, including letting him speak to his attorneys. "Without Padilla's input, this court is deprived of a full factual record," said Newman and Patel. Prosecutors disagree. "Affording access to counsel would jeopardize the two core purposes of detaining enemy combatants -- gathering intelligence about the enemy and preventing the detainee from aiding in any further attacks against America," the government said Monday. The only public evidence offered against Padilla is an unclassified, six-page declaration by Pentagon official Michael Mobbs, who stated that multiple intelligence sources confirmed Padilla's involvement in planning "future terrorist attacks," such as exploding a radioactive "dirty bomb" or bombing U.S. hotels, gas stations or train stations. One of those government sources is senior al Qaeda leader Abu Zubaydah, who once oversaw the now-defunct al Qaeda training camps in Afghanistan and is in U.S. custody. Newman and Patel are asking Mukasey to ignore a classified version of the Mobbs declaration because the government refuses to show them the full document. Prosecutors said sharing it with the defense might compromise ongoing intelligence gathering. Padilla's lawyers say they would submit to whatever screening is necessary to obtain security clearances. Defense attorneys in numerous terrorism cases, including the East Africa embassy bombings trial against four al Qaeda operatives, obtained access to classified materials. Padilla, a Muslim convert known as Abdullah al-Muhajir, is a one-time gang member who has spent four years in U.S. prisons for previous crimes. His lawyers call the "dirty bomb" accusations little more than hearsay and say Padilla actually traveled to Chicago last spring to visit his son. The government, relying on arguments similar to those in the Padilla case, has classified only one other post-September 11 detainee an "enemy combatant" -- Yaser Hamdi, a Louisiana-born U.S. citizen who fought with the Taliban and is being held in Navy brig in Norfolk, Virginia.
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