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Saying there are no acceptable conditions under which a defense lawyer should be allowed to meet with a man designated an enemy combatant, federal prosecutors indicated they are appealing a ruling granting attorney access to accused “dirty” bomber Jose Padilla. In a letter to Southern District of New York Chief Judge Michael B. Mukasey, Southern District U.S. Attorney James B. Comey said that Padilla “poses a danger to the security of the United States,” and allowing the presence of defense counsel would interrupt an interrogation that “will promote public safety.” The letter, dated March 20, announces that the government will seek a reversal of a December order by Judge Mukasey instructing government attorneys to meet with defense lawyers Donna Newman and Andrew G. Patel to determine the conditions under which they could meet with Padilla. Comey said the government “respectfully continues to believe that jurisdiction does not lie in this Court,” and added he hopes to obtain expedited appellate review. Padilla was arrested as a material witness in a terror probe last April at Chicago’s O’Hare International Airport and sent to New York City, where Newman was appointed to represent him. But Newman’s access to her client was cut off when President George W. Bush, acting on information that Padilla was intending to obtain and detonate a radioactive bomb as part of al-Qaida’s conspiracy against the United States, designated Padilla an enemy combatant. Padilla, the first and only U.S. citizen not captured on a foreign battlefield to be so designated, was transferred to the Consolidated Naval Brig in Charleston, S.C., leaving Newman to pursue a petition for a writ of habeas corpus as a “next friend” of the detainee. The government, with Deputy Solicitor General Paul Clement taking the lead, argued first that the proper custodian for purposes of the habeas petition was the commander of the brig in South Carolina, a position Comey reiterated in his March 20 letter. Judge Mukasey ruled in December in Padilla v. Rumsfeld 02 Civ. 4445, that the government must show “some evidence” that the detention of Padilla was justified, and that Padilla could present facts that challenged the government’s justification. The judge also said he could not properly evaluate the petition without the assistance of defense counsel, telling both sides that he would impose conditions for attorney meetings with Padilla if there was no agreement. The judge was angered in January when the government asked him to reconsider his December ruling without providing any new information to justify a motion for reconsideration or following the procedure for such a motion under the Local Rules. Instead, Clement stressed that the interrogation of Padilla would be jeopardized if he were allowed to meet with lawyers. The judge issued another opinion March 10 reiterating his December order and adding that his ruling was not an invitation for further debate. While the judge instructed the lawyers to meet again to try to reach agreement, Comey’s March 20 letter indicated there was no common ground. “In light of the Government’s position, there is no possibility that any consultations with Padilla’s counsel will result in agreed terms of attorney access,” he wrote. Comey added that Judge Mukasey could certify his previous orders for appeal to the 2nd U.S. Circuit Court of Appeals, but the U.S. Attorney suggested “it might facilitate appellate review and promote judicial economy for the Court to order specific conditions of attorney access.” Newman and Patel sent the judge letters on Monday, with one letter arguing that certification to appeal “is simply not appropriate,” and calling Comey’s proposal “another in a series of dilatory acts in this habeas litigation.” In a second letter, the lawyers ask the judge to impose conditions for meeting with Padilla. The proposed conditions would allow visual, but not audio, monitoring of their consultations with him. The two attorneys offered to sign a secrecy agreement that would allow them to consult with Padilla alone and keep all of his statements confidential. They also accuse the government of failing to act on their security clearance applications. The defense’s second letter states that Padilla should not be shackled during the meetings, that five hours of access be granted per day, that the attorneys be allowed to take, and keep, notes of the meetings, and that they be allowed to review all institutional records to determine if Padilla is competent to consult with counsel. “Any ‘sensory deprivation’ techniques which may have been employed will cease at least 72 hours in advance of counsel’s visit to insure that Padilla can engage in a meaningful discussion with counsel,” the letter states. The two sides are scheduled to meet Thursday with the judge.

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