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The government’s continued resistance to allowing defense lawyers to meet with a man held by the military as an enemy combatant drew the ire of Southern District of New York Chief Judge Michael B. Mukasey Wednesday. An angry Mukasey dressed down Deputy Solicitor General Paul Clement for asking the judge, without good reason, to reconsider his Dec. 4 ruling that enemy combatant Jose Padilla can consult with counsel to discuss his petition for a writ of habeas corpus. The Dec. 4 ruling had instructed both sides to negotiate conditions under which the attorneys can meet with Padilla, the purported “dirty bomber” who is now in military custody by order of President George W. Bush. “It appears, or I gather from the papers that have been submitted, that the government has no intention of allowing that to happen, at least not voluntarily,” Mukasey said. Judge Mukasey was upset that Clement provided no new facts that would justify reconsideration of his ruling, and he asked why Clement neglected to include the “body of law relating to reargument motions” in his brief. Clement only angered the judge further when he said he didn’t consider the motion “strictly a reconsideration motion” because the Dec. 4 order “contemplated a continuing conversation” between the parties on terms for attorney-client meetings. “You decided this really wasn’t a reargument motion so you didn’t have to mention the law at all on the subject, right?” the judge shot back. “That’s what you’re telling me?” When the judge pressed him on the issue and Clement started to apologize, Mukasey said, “I’m not looking for an apology; I’m looking for an explanation.” The government’s Jan. 9 motion to reconsider stresses that allowing defense lawyers into a naval brig in South Carolina to visit Padilla would interrupt and compromise the interrogation of him, and hinder the government’s ability to prevent terror attacks against the United States. The motion also emphasizes the Jan. 8 ruling in Hamdi v. Rumsfeld, where the 4th U.S. Circuit Court of Appeals found that a declaration from the executive branch giving reasons for the enemy combatant designation was enough to justify Hamdi’s detention under the Constitution. Clement noted in his motion that the 4th Circuit “reached that conclusion without affording Hamdi access to counsel to address the factual assertions in the declaration.” Defense lawyers Donna Newman and Andrew Patel moved on Jan. 13 to strike the motion for reconsideration, accusing the government of “foot dragging.” Their motion to strike, which will now be briefed by both sides, points out that the 4th Circuit went out of its way in Hamdi to state its ruling has no bearing on the facts of the Padilla case. Newman and Patel also wrote that the government failed to meet the 10-day deadline for motions to reconsider in the Southern District, and ignored the fact that the purpose of a reconsideration motion “is to set forth matters or controlling decisions which a party believes the court has overlooked.” Wednesday, Mukasey also wanted to know exactly what had been overlooked in his December ruling, and he tersely informed Clement that he was well aware of the Hamdi decision. When the judge said the Hamdi court “explicitly” avoided addressing the facts in Padilla’s case, Clement gamely insisted the Hamdi ruling might have some “significance” for Padilla. “Would you please be clear about whether you have any additional facts, either relating to Mr. Padilla specifically or relating to people in Mr. Padilla’s category, that you think I ought to take into account before deciding this motion,” the judge said. When Clement drew the judge’s attention to a declaration from a defense intelligence official attached to his motion, the judge said he had seen the declaration. In all, the judge asked Clement five times whether he had additional facts that would warrant reconsideration. “Do you understand the question?” the judge asked. “I understand the question,” Clement responded. “What’s the answer?” Mukasey asked. “The answer to that would be no,” said Clement. “Thank you,” the judge said. “You may take your seat.” Later, as he prepared to adjourn the hearing, Judge Mukasey told Clement, “I can’t believe, I really can’t believe, and I don’t believe that it didn’t occur to you that this was a reargument motion. That’s just absurd.”

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