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Defense lawyers representing Jose Padilla say his case is dramatically different from that of another U.S. citizen who was also designated an enemy combatant by President George Bush. The lawyers Tuesday filed the latest in a series of briefs seeking to convince Southern District of New York Chief Judge Michael B. Mukasey that Padilla’s “combatant” status is improper, and that the alleged associate of Osama bin Laden has the right to counsel and should be released from military custody. The papers were filed by lawyers Donna Newman and Andrew Patel one day after the 5th U.S. Circuit Court of Appeals heard arguments in the case of the other accused combatant, Yaser Esam Hamdi. Padilla’s lawyers are hoping that a different court and a different set of facts will result in Padilla’s being freed or transferred back from military to civilian authorities. Padilla was arrested in Chicago and detained for months as a material witness in the terror investigation before President Bush signed the order designating him an enemy combatant. Attorney General John P. Ashcroft announced that Padilla had re-entered the United States to acquire and detonate a radioactive or “dirty” bomb. Hamdi was arrested in Afghanistan, allegedly while holding a gun, as he fought for the Taliban. His status as a U.S. citizen, discovered after he had been shipped to a detention center in Guantanamo Bay, Cuba, led the military to transfer Hamdi to a naval brig. Although Newman is making many of the same arguments regarding Padilla’s right to counsel that were made for Hamdi, she said Tuesday in an interview, “I think there are major differences between the two cases.” But the government, in its own argument to Judge Mukasey, said the place and circumstances of Padilla’s apprehension are irrelevant. The president’s broad authority to designate enemy combatants cannot be challenged, the government argues, and Padilla has no right to counsel and is ineligible for habeas corpus relief. As in the 4th Circuit arguments in Virginia on Monday, the government in Padilla’s case defended its decision to release only part of the “Mobbs Declaration,” which outlines the case for Padilla’s detention. The declaration, drafted by Michael Mobbs, a high-ranking official with the U.S. Department of Defense, sets forth the authority under which the president can designate individuals as enemy combatants. The classified portion of the declaration, the government says, contains sensitive intelligence information about how the government learned of Padilla’s intentions. On Monday, Deputy Solicitor General Paul D. Clement, who also submitted papers in the Padilla case, told the 4th Circuit that it would be a mistake to allow Hamdi’s counsel, Federal Public Defender Frank W. Dunham Jr., access to classified portion of the declaration. In the Padilla papers, Clement made the same argument, even though Newman and Patel volunteered to undergo security screening before viewing the material. Letting the lawyers see only the unclassified portion of the declaration suffices, Clement argues in the papers, because “it describes Padilla’s multiple contacts with senior al Qaida officials while in Pakistan and Afghanistan,” and their alleged plan to have him return to the United States on a bombing mission. As for the classified portions of the Mobbs Declaration, Clement said Judge Mukasey should view them in camera and not share them with the defense. DEFERENTIAL STANDARD Clement, citing an earlier ruling by the 4th Circuit in the Hamdi case, said Mukasey should “employ a highly deferential standard of review to the military’s wartime determination that an individual is an enemy combatant.” “Any appropriate role for the courts in this sensitive military context is limited to reviewing legal challenges to the detention and, at most, to confirming there is some basis in fact for the determination that an individual is an enemy combatant,” Clement writes. Clement also argues that Padilla’s case is not strengthened by the fact he was arrested in the United States. Dunham, the federal defender who represents Hamdi, said Tuesday in an interview that a key distinction between the two cases is the 4th Circuit’s concern that a habeas proceeding might put a district judge in the position of second-guessing military officers and even hauling them back to the United States for the hearing. In fact, Dunham noted that 4th Circuit Chief Judge J. Harvie Wilkinson III brought up Padilla’s situation during the arguments in the Hamdi case. “The judge made a remark that made one think he sees the detention of someone in the U.S. as a whole different can of corn than someone grabbed on a battlefield,” Dunham said. “In my view, as far as risk analysis, Mr. Padilla may be a much more dangerous character, but he’s got a better case,” he said. Mukasey could either rule on the merits of the case with or without a hearing, or decide to transfer the case to a federal judge in South Carolina, where Padilla is being held in a naval brig.

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