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The federal government will have to justify its detention of the so-called “Dirty Bomber” as an enemy combatant in the war on terrorism. Over the objection of the U.S. Department of Justice, Chief U.S. District Judge Michael B. Mukasey of the Southern District of New York said Wednesday that he wanted briefs from both sides on the legality of holding accused bomber Jose Padilla, who was arrested at Chicago’s O’Hare International Airport as a material witness in May and brought to New York. Once in Manhattan, Padilla, who is accused by prosecutors of planning a bomb that would disburse radioactive materials, was then transferred into the custody of the U.S. military and shipped to a Navy brig in Charleston, S.C. Mukasey’s decision was treated as a small victory by defense lawyers Donna R. Newman and Andrew Patel because the government had argued the New York court lacks jurisdiction to entertain the writ for a petition of habeas corpus filed on Padilla’s behalf. Deputy Solicitor General Paul D. Clement argued that the court should not consider the merits of the case because the proper respondent for the petition is neither President Bush, who designated Padilla an enemy combatant, nor Secretary of Defense Donald Rumsfeld. The respondent in a petition for a writ of habeas corpus, he said, must be the actual custodian of the prisoner, in this case Commander M.A. Marr of the Consolidated Naval Brig in Charleston. And even if such a petition can be entertained, and Clement argues that it cannot, jurisdiction would only lie in South Carolina. Attorney General John Ashcroft said on June 10 that Padilla, who now goes by the name of Abdullah Al Muhajir, was arrested because he was exploring a plan to “build and explode a radiological device or ‘dirty bomb’” in the United States. Ashcroft said that Padilla, a U.S. citizen and former gang member, had met with top members of the Osama bin Laden-led terrorist group al-Qaidain Afghanistan and Pakistan, and had returned to the United States to continue planning a terror attack. Newman said she learned on Monday, June 10, that President Bush had signed an order the day before designating Padilla an enemy combatant, and that Padilla was immediately transferred from the Metropolitan Detention Center in Brooklyn into the hands of the U.S. Department of Defense. She said he had been held “incommunicado” since that time, unable to meet with family members or Newman, who had been appointed as his lawyer by Judge Mukasey. ‘NEXT FRIEND’ Newman contends that Padilla’s detention is illegal and, as a U.S. citizen, his case is far different from those of the al-Qaida and Taliban soldiers seized in Afghanistan and Pakistan and now held at a special facility for detainees at Guantanamo Bay, Cuba. But the government has argued from the beginning that the authority to seize and detain enemy combatants is “well settled,” and that Padilla’s designation as a combatant makes him ineligible for habeas relief. They also contend that Newman no longer has the right to petition the court for his release because of Padilla’s new status. Newman sought to be heard as Padilla’s “Next Friend.” Under the standard set forth for “Next Friends” by the U.S. Supreme Court in Whitmore v. Arkansas, 495 U.S. 149 (1990), she is required to show why Padilla cannot appear on his own behalf, demonstrate she is “truly dedicated” to his interests and prove she has some “significant relationship” with Padilla. Newman says that she meets all three requirements, particularly because of Padilla’s inability to appear on his own behalf. Not only has he been barred from meeting his lawyer or members of his family, she said, but he also has been denied permission to send or receive mail. The government, however, argues that Newman’s brief representation of Padilla while he was in civilian custody as a material witness falls far short of meeting the “significant relationship” standard, because the attorney-client relationship must be “longstanding.” JURISDICTION QUESTION Wednesday, Newman and Patel said they were pleased that the issue of her Next Friend status was never raised by the judge. And both lawyers said they were heartened when Mukasey said: “If I’m going to decide the merits, I’d like to have those papers in before I decide the question of personal jurisdiction” — even though the judge gave no indication, one way or the other, whether the case should be heard in South Carolina, in New York, or at all. Newman and Patel said in court Wednesday that the ban on access to Padilla is so complete that they even have been denied access to the order issued by the president. And they insisted that the habeas petition should be heard on it merits in New York. Mukasey indicated that the jurisdictional question may not depend on where Padilla is being held by the Defense Department. He said there was a “suggestion” in the case law of the 2nd U.S. Circuit Court of Appeals that “conventional long-arm principles apply” to the situation. Attorneys for the two sides differ on the 2nd Circuit case Henderson v. INS, 157 F.3d 106 (2d. Cir. 1998), which discussed, in the context of immigration, whether Attorney General Janet Reno was a proper respondent to a habeas petition brought in New York, even though the detainees were being held elsewhere. The issue was whether Reno’s control over the detention and removal of aliens was so pervasive as to justify naming her as respondent. SERVICE OF PROCESS Although Clement told Mukasey Wednesday that the Henderson court reserved decision on whether the attorney general is the proper respondent, Newman relies on Henderson‘s statement that the general rule treating the jailer as the proper respondent “can not and should not be followed with blind rigid adherence.” But Clement and his fellow prosecutors, in their written response to Newman’s petition, said that the Henderson court, “assumed, without deciding, that a district court would have jurisdiction over a habeas respondent if the state long-arm statute could reach him.” This assumption they say was based on the Supreme Court’s statement in another case that a custodian was a proper respondent if they could “be reached by service of process.” That reference to service, the prosecutors argue, “cannot be read to have altered the rule” requiring a district court to have territorial jurisdiction over the custodian “and to tacitly allow state long-arm statutes to trump territorial limitations in the federal habeas statute.” Moreover, they argue, the Supreme Court has also implicitly rejected the suggestion that 28 U.S.C. � 1391(e), which permits nationwide service of government officers in civil cases, applies in habeas cases. After the hearing, Newman and Patel hinted the government’s fall-back argument that the case should be transferred to South Carolina was motivated by the belief that the government is more likely to receive a favorable hearing on Padilla’s detention in the 4th Circuit. Briefs by both sides and responses are due to be submitted to Judge Mukasey on Sept. 20.

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