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Deputy Solicitor General Paul Clement faced sharp questioning last week by federal appeals judges who doubted the president’s claim of wide-ranging authority to seize an American citizen on U.S. soil as an enemy combatant in the war against terror. At oral arguments on Nov. 17, two of the three judges on a panel of the U.S. Court of Appeals for the 2nd Circuit bluntly challenged Clement’s argument that alleged al Qaeda associate Jose Padilla can be denied counsel and be held indefinitely. Judge Barrington Parker Jr. said that the degree of executive authority urged by Clement was “breathtaking in its sweep,” and that giving the president this type of power with only a “modest kind of judicial review” would cause “a sea change in the constitutional life of this country.” Clement was arguing that the government was using a legitimate weapon of wartime in removing Padilla from the battlefield, taking him to a naval brig in South Carolina, and, without interference from defense lawyers, questioning him about his contacts with the group led by Osama bin Laden. “The executive made a finding that intelligence gathering with respect to al Qaeda was so important that they didn’t want to take all these tools off the table,” he said during two hours of intense argument before a full house in the ceremonial courtroom at 500 Pearl St. in New York. “Al Qaeda made the battlefield the United States and the evidence indicates they’re trying to make it the battlefield again.” Judge Rosemary Pooler, recalling that on Sept. 11, 2001, she walked “out my office and saw those towers on fire,” questioned whether, in fact, the battlefield has become the United States. “I think Congress has to say that, not the president, and I don’t think they have yet,” Pooler said. Clement was before the court challenging Southern District Chief Judge Michael Mukasey’s ruling that New York City is the proper place to hear Padilla’s petition for a writ of habeas corpus. He was also contesting Mukasey’s ruling that any meaningful consideration of whether there was “some evidence” to support the combatant designation requires that Padilla be allowed to meet with his lawyers and contest allegations he was pursuing a terror plot. Those lawyers, Donna Newman and Andrew Patel, assisted by Stanford Law School professor Jenny Martinez as a friend of the court, argued that Congress, in empowering President George W. Bush to act against al Qaeda after Sept. 11, stopped short of giving the president the authority to suspend due process for an individual while the nation’s civil courts are open and functioning. Approving the seizure of Padilla, they contended, would amount to an unprecedented expansion of presidential power. Assuming that the case was properly in the Southern District, and assuming the president has the authority to designate a U.S. citizen captured here as a combatant, the panel wanted to know exactly how a court is supposed to review the designation and what standards of proof apply. The arguments were punctuated with stark reminders from the panel, particularly by Judge Richard Wesley, that the attacks on the World Trade Center and the Pentagon presented this country and its legal system with problems unique to modern warfare against a stateless foe. Wesley asked Martinez whether her argument’s reliance on the lack of congressional authorization meant that President Bush would have been unable to detain lead Sept. 11 hijacker Mohammed Atta for even a week’s time if the president had information that an attack was imminent. Martinez smoothly deflected the question in a response that cast the issue in traditional Fourth Amendment terms, saying that information about an impending attack would amount to probable cause, and the government would have the power to act without a warrant when faced with exigent circumstances. Clement argued that the commander in chief had all the authority he needed, and that it was not for the courts to “parse” the words of Congress when it gave the president license to attack al Qaeda in a joint authorization after Sept. 11. “You say don’t ‘parse’ it — what does that mean, don’t read it carefully? We’re lawyers, our lives are language,” Judge Parker said. He added that it was the job of Article III judges to decide the meaning of a congressional grant of authority to the executive. Clement held firm, saying the power of the courts is “limited” in such circumstances, where the authority to hold combatants “has always been part and parcel of the war power when Congress authorizes force.” But Patel insisted on Padilla’s behalf that congressional authorization to suspend due process had to be specific. Speaking quietly and passionately, Patel argued, and Judge Wesley seemed to agree, that the right of habeas corpus was meaningless if unaccompanied by the right to see a lawyer and demand a hearing in which the government is held to certain standards of proof. “Your Honor, this is the land of the free and the home of the brave,” he told Judge Pooler. “As terrible as 9/11 was, it didn’t repeal the Constitution, that’s what you mean?” Pooler asked. Judge Wesley seemed most sympathetic to the notion that the government’s wartime powers must extend to U.S. soil when the enemy had already turned this country into a battlefield. But Wesley was also troubled that Clement seemed to be arguing for an open-ended detention that could last as long as the conflict continued or until further interrogation of Padilla would be fruitless. “How long, Mr. Clement?” Judge Wesley asked. “How long does he wait?” Clement argued that the right of habeas corpus remained “robust” because the “some evidence” standard forced the government to articulate reasons for holding a combatant. He candidly acknowledged that his position required a certain amount of faith in the good intentions of the executive branch, or what Judge Parker referred to as a “pure, trust me,” argument. Clement fared best when he said that the proper forum for hearing Padilla’s habeas petition was in South Carolina, where he has been held incommunicado since June 2002. Padilla was initially arrested in Chicago in May 2002 as a material witness to a grand jury probe of al Qaeda and the Sept. 11 attacks. He was then taken to New York City. Clement said habeas case law, albeit with some exceptions for unusual cases, dictates that the proper place to challenge a detention is in the district where the body is being held, and the proper respondent is the head of the military facility in South Carolina — and not Secretary of Defense Donald Rumsfeld. Wesley questioned Newman on Padilla’s brief presence in New York, wondering why the petition should be heard there when the order was signed in Washington, D.C., or Virginia and Padilla is being held in South Carolina. “Habeas is supposed to be flexible,” Newman said, emphasizing that the “cause of action” arose in New York when Padilla was transformed from a material witness into a combatant and handed over to the Department of Defense. But Judge Wesley disagreed, saying the “gravamen of your complaint is the legitimacy of the president’s order,” and not venue for the hearing of the habeas petition. Should Judges Pooler, Wesley, and Parker decide that jurisdiction is properly in South Carolina, the panel would avoid having to decide the scope of the president’s powers and the degree of judicial review. Newman is strongly opposed to moving the case to South Carolina because its courts are in the 4th Circuit, which she believes is the appeals court most likely to view the powers of the president expansively. 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 Yaser Esam Hamdi, who was apprehended outside of U.S. jurisdiction on the battlefield in Afghanistan. The court made clear that its ruling had no bearing on the facts of Padilla’s case. For his part, Clement was asked by the panel how long Padilla would have to wait if the case was begun anew in South Carolina. “The 4th Circuit has demonstrated its ability to deal expeditiously with these matters,” Clement said. Judge Pooler thanked Clement for his “chauvinistic comparison among the circuits.” Mark Hamblett is a reporter at the New York Law Journal, an American Lawyer Media daily newspaper, where this article first appeared.

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