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Lawyers for an American citizen detained as an enemy combatant by order of President Bush accused the government Monday of intentionally delaying their first meeting with their client. Responding to a government motion that asks Chief Judge Michael Mukasey of the Southern District of New York to reconsider his decision allowing enemy combatant Jose Padilla to meet with them, attorneys Donna R. Newman and Andrew G. Patel said the motion was “nothing more than foot dragging.” Mukasey, in a groundbreaking ruling on Dec. 4, said the executive branch must present “some evidence” supporting the president’s decision to designate Padilla an enemy combatant. The judge also ruled that some access to counsel should be provided Padilla to help the court consider his petition for a writ of habeas corpus. Padilla was designated a combatant, administration officials said, because he had returned to the United States to pursue a plot to obtain and detonate a radioactive or “dirty” bomb. He had been in custody as a material witness for three weeks following his arrest at O’Hare International Airport in Chicago. In the Dec. 4 ruling, Mukasey instructed two sides to submit papers — and attempt to come to some agreement — on the manner in which the lawyers could meet with their client. A conference with the judge is set for today. On Jan. 9, the government submitted its motion for reconsideration, reasserting that there should be no meeting between Padilla and his lawyers, but that move is not expected to postpone the conference. The central argument in the government’s motion was that allowing Padilla access to counsel would compromise his interrogation. Deputy Solicitor General Paul D. Clement and Southern District U.S. Attorney James B. Comey told the judge in their motion that the briefing leading up to the judge’s Dec. 4 ruling “failed sufficiently to focus on the grave damage to national security interests that would result from interference with the interrogation of Padilla.” GOVERNMENT DECLARATION The government included a declaration from Vice Admiral Lowell E. Jacoby, director of the Defense Intelligence Agency, who said allowing lawyers to see Padilla would compromise intelligence gathering. Clement and Comey argue that Padilla’s exposure to defense lawyers would “threaten permanently to undermine the military’s efforts to develop a relationship of trust and dependency that is essential to effective interrogation.” And building that relationship takes time, they argue, particularly because Padilla spent time in prison in the United States before he traveled abroad and made contact with Osama bin Laden’s terror organization, al-Qaida. “In view of his substantial experience with the United States criminal justice system and his representation by counsel when detained as a material witness, Padilla may be more likely to resist interrogation — and more likely to expect counsel can and will assist — than most detained enemy combatants,” they state. But in their reply Monday, Newman and Patel said the Jacoby Declaration is “more of the same.” “It consists of nothing more than conjecture as to what Padilla is thinking and how he might react to seeing counsel,” they state. Newman and Patel also argue that the government has failed to bring new information to light that would warrant reconsideration by Judge Mukasey. “Few issues have been as thoroughly briefed as Padilla’s right/access to counsel,” they state, adding that the government’s motion is “impermissible, repetitive and an apparent effort to unreasonably delay counsel’s meeting with Padilla.” 4TH CIRCUIT RULING Not surprisingly, the government in its motion to reconsider, and Padilla’s lawyers in their response, take opposing views on the significance of the 4th U.S. Circuit Court of Appeals’ recent decision in Hamdi v. Rumsfeld, the case of another U.S. citizen designated an enemy combatant by the president. On Jan. 8, the 4th Circuit found that a declaration from the executive branch giving reasons for the enemy combatant designation was sufficient. The government states in its Padilla motion that the 4th Circuit “reached that conclusion without affording Hamdi access to counsel to address the factual assertions in the declaration.” But for Newman and Patel, the government is misapprehending the significance of the Hamdi ruling. The government’s argument, they say, “presupposes the President’s findings must be accepted at face value without providing Padilla with an opportunity to refute factual contentions.” This argument, Newman and Patel claim, ignores habeas corpus case law and statutes that “require a factual response,” and “likewise ignores Padilla’s due process rights to effectively appear in court.” The 4th Circuit’s decision in Hamdi, Newman and Patel assert, “is of little value” to the government in Padilla. They quote the 4th Circuit in Hamdi as saying, “We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding.” The government’s motion for reconsideration was signed by Comey and Clement, as well as Assistants to the Solicitor General David B. Salmons and Sri Srinivasan, Justice Department Attorney Jonathan L. Marcus, and Assistant U.S. Attorney Eric B. Bruce.

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