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U.S.: Legal Experts Question Detention Of American Linked To Al-Qaeda

An American citizen accused of plotting with Al-Qaeda to detonate a radioactive bomb in the United States is being held virtually incommunicado in a military prison. Legal scholars say law enforcement officials have gone too far, even in the name of national security, and are demanding that the administration of President George W. Bush formally justify its decision to strip him of most of his legal rights.

Washington, 14 June 2002 (RFE/RL) -- There are growing demands in the United States that the administration of President George W. Bush restore the legal rights of an American citizen who is being held in military custody on suspicion of plotting attacks on the country for Al-Qaeda.

Jose Padilla was arrested on 8 May when he flew into Chicago from Pakistan. The Justice Department says he was planning to explode a "dirty bomb" somewhere in America, possibly in Washington. A "dirty bomb" is a conventional explosive that would spread dangerous radioactive material upon detonation.

Padilla -- a Muslim convert who took the name Abdullah al-Muhajir -- was held in civilian custody until 10 June, when he was transferred to a military prison. The Bush administration said it had concluded that Padilla is an enemy combatant, and that under international law, he can be held for the duration of the hostilities with Al-Qaeda without access to a lawyer or his family. Meanwhile, the government has yet to file any charges against Padilla.

On 12 June in New York, his lawyer filed a court motion demanding that the administration satisfy a judge that Padilla's detention is lawful under the U.S Constitution's "habeas corpus" language.

Legal analysts say the administration is acting unconstitutionally in depriving him the rights routinely accorded to any other person arrested in this country. Chief among these rights is that of due process, the guarantee that the state must follow established procedure in prosecuting him.

The advocacy group Human Rights Watch says the U.S. government is misinterpreting international law. Jamie Fellner, the organization's director of U.S. programs, told RFE/RL in an interview from New York that the administration cannot simply designate Padilla as an enemy combatant and thereby strip him of the rights that any other defendant would have. "We don't believe that for a person detained here in the United States, far from any battlefield, that the president can simply say, 'OK, I call you an enemy combatant,' with no proof, and thereby circumvent all the criminal justice procedures. Noting gives the president that kind of awesome power."

Fellner contends that if the government had good evidence that Padilla was intent on mounting a terrorist attack, it could have brought an indictment, or a formal criminal charge, against him. She says she suspects that the evidence against Padilla is weak, or, worse, that investigators want to get him to incriminate himself and others. "Once they have the indictment, then they could have him held without bail. What they really want to do is to be able to question him without an attorney present."

Fellner and other legal analysts interviewed by RFE/RL say that downgrading Padilla's status to that of a person with no legal rights should have been approved by a judge, just as a judge must approve the pretrial detention of any defendant accused -- but not convicted -- of a crime.

These analysts concede that there is not specific law that requires a judge's approval for such a move, but they say the obligation is inherent in the U.S. Constitution's "habeas corpus" language.

Ralph Steinhardt, a professor of law at George Washington University in Washington, points to the administration's contention that there is a solid legal precedent for holding Padilla -- a 1942 case in which eight men acting on behalf of Nazi Germany were convicted of espionage, and six were put to death. Two of the men -- including one who was executed -- had credible claims to U.S. citizenship.

Steinhardt told RFE/RL that, like Padilla, these men were held without access to lawyers, treatment that was upheld by the U.S. Supreme Court, the nation's highest court. But they were not moved to the more restrictive confinement until after they had the benefit of a "habeas corpus" hearing at which a judge ruled that strict incarceration was justified. "The people who are trying to shortchange the process here are citing a Supreme Court decision that depended on judicial review of the way these guys were treated. The point is that the president [in 1942] couldn't just recruit the Justice Department to try someone totally outside of the court system."

Herman Schwartz agrees. He is a professor of law at American University in Washington. Schwartz says what the Bush administration is trying to do is nothing short of arrogant. "What is being done here is, to my mind, a flagrant violation of everything -- a whole host of due process rights and equality rights in our constitution."

Schwartz says he hopes Padilla's lawyer is successful in her "habeas corpus" petition. But he says there is a chance that the government may not wait to lose this case in court and restore at least some of the prisoner's rights. He says the outcry over Padilla's treatment comes from people of all political backgrounds, including those who usually support Bush's policies. "They may decide, 'Look, it's just too much hassle,' because they're getting hell from all kinds of people, from the right wing and from the left."

Otherwise, Schwartz says, the court dispute over Padilla's incarceration could possibly wind up in the Supreme Court. If the Bush administration lost the case there, he says, it would face enormous embarrassment.