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A man designated by President George W. Bush as an enemy combatant in the war against terrorism may challenge his detention in federal court with the aid of a lawyer, Chief Judge Michael B. Mukasey of the Southern District of New York ruled Wednesday. Rejecting the government’s claim that Jose Padilla had no right to contest his transfer from civilian to military custody for the duration of the country’s fight against al-Qaida, Mukasey said he would allow Padilla to “present facts” in support of his petition for a writ of habeas corpus. In deciding to detain Padilla, Judge Mukasey said that the president was “operating at maximum authority” under both the U.S. Constitution and a Joint Resolution of Congress passed in the wake of Sept. 11, and that Padilla’s status as a U.S. citizen was of no matter. In a statement issued Wednesday by U.S. Department of Justice spokeswoman Barbara Comstock, the government praised the decision for reaffirming the president’s broad authority as commander in chief to designate enemy combatants, and for saying that it did not matter that Padilla is an American. But Mukasey also made it clear that the commander in chief’s broad power to designate enemy combatants is not immune from judicial review. The judge said that his review will be limited to “whether there was some evidence to support the president’s finding, and whether that evidence has been mooted by events subsequent to Padilla’s detention.” The mere fact that the judge will review the detention was hailed as a victory by defense lawyers Donna Newman and Andrew Patel. Padilla, 31, was arrested as a material witness in Chicago in May after returning to the United States to pursue what Attorney General John P. Ashcroft said was a plot to obtain and explode a radioactive or “dirty” bomb. Once the president designated him a combatant in the war against Osama bin Laden and al-Qaida, Padilla was transferred June 9 from a federal detention center in Brooklyn to a naval brig in South Carolina, where he has been held incommunicado. But Newman, initially appointed by Judge Mukasey to represent Padilla when he was a material witness, argued that Padilla had the right to challenge his detention through habeas corpus. Newman also insisted that she met the standard for pursuing the habeas petition as a “next friend” of Padilla, and the judge agreed with her. Mukasey rebuffed a government challenge to his jurisdiction over the case, and also ruled that Secretary of Defense Donald Rumsfeld, and not the commander of the naval brig in South Carolina, was the proper respondent for the habeas petition. The government strongly opposed allowing Padilla legal representation, expressing concern he might use his lawyers to unwittingly pass messages to the enemy. Mukasey addressed this problem by ruling that Padilla may consult with counsel “under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others.” But the judge also said the government’s concern as to Newman and Patel was “gossamer speculation.” “There is nothing in their past conduct to suggest that they would be inclined to act as conduits for their client, even if he wanted them to do so,” he said. SIXTH AMENDMENT Mukasey was careful to point out that the Sixth Amendment right to counsel was not implicated here because the hearing was not a “criminal proceeding.” But, the judge said, “Padilla does have the right to present facts,” the “most convenient way for him to go about that, and the way most useful to the court, is to present them through counsel.” The judge added that “the government’s arguments are insufficient to warrant denying him access to counsel.” And while the judge gave “substantial weight” to the president’s statement in his June 9 order that Padilla’s detention “is necessary to prevent him from siding with al-Qaida in its efforts to attack the United States,” the judge also said he had seen no facts that showed a danger that Padilla would attempt to transmit information through the lawyers. “By contrast, Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel,” the judge said. A conference has been set for Dec. 30 to decide the conditions under which the attorneys will be able to meet with Padilla. Mukasey said he did not believe that the 4th U.S. Circuit Court of Appeals’ decision in Hamdi v. Rumsfeld, 296 F.3d 278 (2002), “alters the balance in the government’s favor,” in the Padilla case. The 4th Circuit, in the case of a U.S. citizen seized in Afghanistan and designated an enemy combatant, reversed a lower court’s decision allowing Hamdi unmonitored access to counsel. The 4th Circuit said the lower court judge had acted without the benefit of briefings or argument, and “there was little indication” that the judge “gave proper weight to national security concerns.” However, Mukasey said, “No such access is to be granted here, and the court has had the full benefit of the government’s submissions, both sealed and unsealed. “Further, Padilla’s situation appears to differ from Hamdi’s in that he had access to counsel after his capture but before his designation as an enemy combatant.” The sealed and unsealed submissions to which the judge referred were the so-called Mobbs Declaration, which was authored by Michael H. Mobbs, a special adviser in the U.S. Department of Defense. The declaration lays out the president’s authority to designate enemy combatants and the reasons why Padilla was so designated. The government invited Judge Mukasey to review the sealed portions of the declaration in camera, but said it would withdraw that invitation, out of concerns for national security, if the judge was inclined to disclose the sealed portions to Padilla and his lawyers. The judge said he was declining to conduct an in camera review “at this time,” to determine whether the government had met the “some evidence” standard. As for Padilla, he said, “access to the unclassified Mobbs Declaration gives him all the notice necessary to meet the allegations of whom he had contact with and what he did, or to explain why those allegations are now moot.” Deputy Solicitor General Paul D. Clement; Assistants to the Solicitor General David B. Salmons and Sri Srinivasan; Justice Department attorney Jonathan L. Marcus; and Southern District Assistant U.S. Attorney Eric Bruce represented the government.

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