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Judges to hear legal challenge Original Source Link: (May no longer be active)
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17 Nov 2003 22:50:01 GMT
Judges hear US enemy combatant legal challenge
By Gail Appleson
NEW YORK, Nov 17 (Reuters) - A U.S. appeals judge said on Monday that allowing the president unchecked power to jail Americans indefinitely as part of the war on terrorism could have an "unprecedented" impact on Americans' legal rights.
U.S. Second Circuit Court of Appeals Judge Barrington Parker Jr. made his comments during arguments in the case of "dirty bomb" suspect Jose Padilla, 33, a U.S. citizen held incommunicado as an enemy combatant for the past 18 months. Padilla, a New Yorker, has not been charged with any crime and is barred from communicating with lawyers.
Padilla is a suspect in an al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport last year as he arrived from Pakistan and is being held in isolation at a Navy brig in South Carolina.
Federal prosecutors argue Padilla should not have access to attorneys because he poses a threat to national security and defense lawyers would interfere with his interrogation. They also believe defense lawyers could unwittingly be used to pass messages to al Qaeda operatives.
During a lengthy hearing in Manhattan federal court, Deputy Solicitor General Paul Clement argued that after the Sept. 11 attacks, Congress authorized the president to take actions to stop future international acts of terrorism, including the right to detain American citizens indefinitely.
"Al Qaeda has made the battlefield the United States and they are trying to make it the battlefield again, the evidence indicates," Clement said of the extremist group blamed for the Sept. 11 attacks.
Parker questioned the government's contention the president's authority extended to the case of Padilla, an American citizen arrested on U.S. soil. Both he and another panelist, Circuit Judge Rosemary Pooler, also raised the question of whether the power to designate U.S. citizens as enemy combatants rested with Congress, not the president.
He said if the court were to allow the president such sweeping powers with only limited court review, "we would be affecting a sea change in the constitutional life of this country making changes that would be unprecedented in civilized society."
The case is being watched as a key constitutional challenge to the Bush administration's anti-terrorism campaign after the Sept. 11, 2001, attacks. The three-judge panel will issue its ruling at a later date.
UNLIKELY ALLIANCE
Padilla's challenge is supported by the American Bar Association, the nation's largest legal association, as well as a group of retired prominent federal jurists and an unlikely alliance of conservative and liberal public interest groups.
Jenny Martinez, a Stanford University law professor, one of three attorneys to argue on Padilla's behalf, said that if the president was given this authority, "they can do this to any American and the courts are powerless to intervene. That has never been the law in this country and that cannot be the law."
Later this year, the U.S. Supreme Court is expected to decide whether to hear another U.S. enemy combatant's challenge to his open-ended detention. Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan, has been held without access to a lawyer in military brigs. A key difference between the Hamdi and Padilla cases was that Padilla was captured in the United States, not on a foreign battlefield.
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