After reading a number of news accounts about today's hearing in the "Dirty Bomber" case, it seems clear that the judges gave the government's lawyer a hard time.
Padilla, a former Chicago gang member, allegedly met with high ranking al-Qaida members in 2001 and 2002, received explosives training in al-Qaeda camps inside Afghanistan and plotted with the group to bomb hotels and gas stations, and to detonate a radioactive "dirty bomb," a conventional explosive laced with radioactive material, inside the United States.
Padilla was arrested in May 2002 after returning to Chicago from Pakistan. He was arrested as a material witness for the grand jury probe into the September 11, 2001, terrorist attacks. Padilla was transferred to Department of Defense custody after President bush declared him to be an enemy combatant on June 9, 2002.
Today’s hearing before a three judge panel of the 2nd Circuit Court of Appeals concerned the government's appeal of a court ruling that lawyers must be allowed to meet with Padilla at the South Carolina brig where he is being held as an enemy combatant.
In Newsday’s report, Patricia Hurtado quotes Judge Barrington Parker as saying, "It strikes me . . .the power you're asking us to give to the Executive is power, which as I read the Constitution, is Congressional power. Were we to construe the Constitution as permitting this kind of power in the Executive with only modest kinds of judicial review, we would be affecting a sea-change in the Constitutional life of this country and we'd be making that change that would be unprecedented in civilized society."
The government contends that the President has authority to detain Padilla indefinitely for intelligence-gathering purposes and to deter future attacks in this country. Deputy Solicitor General Paul Clement said "Al-Qaida made the battlefield the United States and the evidence indicates that they're trying to make it the battlefield again.”
Judge Rosemary Pooler asked, "If, in the battlefield is the United States, I think Congress has to say that and I don't think they have yet." She added later, "As terrible as 9/11 was, it didn't repeal the Constitution."
CNN’s Phil Hirchkorn and Deborah Feyerick reported that Judge Richard Wesley asked: "How long can Mr. Padilla remain an enemy combatant? Is Mr. Padilla in limbo until the president decides? ... What's the outer limit?"
"As long as the conflict," answered Clement.
Clement said the congressional resolution authorizing the use of military force to respond to the September 11 attacks extended to U.S. citizens on American soil to prevent further attacks or for intelligence gathering.
"Anyone who is associated with al Qaeda is aiding the enemy," Clement said.
Judge Barrington Parker stated that the war resolution "has to be stretched" to permit such executive power, which would be "breathtaking in its scope."
Judge Wesley noted that the Patriot Act, passed by Congress in 2001, places strict limits on how long a government may detain a noncitizen without bringing charges. He contrasted that with the Padilla case.
"Isn't it curious that an alien is treated better than a citizen?"
UPDATE - Michael Garcia, writing in Tuesday's Washington Post reports that the judges were concerned about tying the Presidents hands. Responding to a series of questions from Judge Wesley, defense lawyers conceded that a president had the right to hold and interrogate a suspect who posed an imminent threat.
Mark Hamblett writing in Tuesday’s New York Law Journal suggests that if Judges Pooler, Wesley and Parker decide that jurisdiction is properly in South Carolina, where Padilla is being held, the panel could avoid having to decide the scope of the president's powers and the degree of judicial review.
If the 2nd Circuit takes this "easy" way out, the 4th U.S. Circuit Court of Appeals would decide whether Padilla could continue to be held without defense lawyers being able to speak to him. The 4th U.S. Circuit Court of Appeals is considered by many as likely to take the most expansive view presidential powers.
The 4th Circuit has ruled in favor of the government in another case of an American citizen designated as an enemy combatant, but that case involved Esam Hamdi, who was apprehended outside of U.S. jurisdiction on the battlefield in Afghanistan.
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