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Chief Judge Michael B. Mukasey of the Southern District of New York on Wednesday certified several questions for appeal in the detention of designated enemy combatant Jose Padilla. With the government refusing to budge from its position that any meetings between defense lawyers and the alleged “dirty bomber” would jeopardize his interrogation at a naval brig in South Carolina, the judge gave his approval for an interlocutory appeal to the 2nd U.S. Circuit Court of Appeals. Defense lawyers Donna Newman and Andrew Patel have accused the government of stalling since Mukasey issued an order Dec. 4 directing the two sides to meet and agree on conditions for attorney meetings with Padilla. Mukasey had said in his December ruling in Padilla v. Rumsfeld, 02 Civ. 4445, that the meetings were needed to help him consider a petition for habeas corpus. In his December ruling, the judge also found that President George W. Bush has the authority to designate an American citizen an enemy combatant. He said further that the president’s authority is properly exercised as long as there is a showing of “some evidence” to support the designation, and that Padilla must be given an opportunity to present facts to challenge his detention. After Mukasey reiterated his ruling on March 11, and it became clear there was a hopeless stalemate over conditions on attorney meetings, Newman and Patel proposed a series of conditions for Judge Mukasey’s consideration. Wednesday, the judge declined to adopt those suggestions or issue his own set of conditions, in effect deciding not to impose an injunction that would have been automatically appealable to the 2nd Circuit. Instead, the judge said his orders in December and March involved “controlling questions of law as to which there is substantial ground for difference of opinion,” and were therefore the proper subject for an interlocutory appeal. The first two questions, the judge said, were based in part on “circuit law that is not entirely settled and has not been applied to facts like those present here.” The questions are whether Secretary of Defense Donald Rumsfeld is the proper respondent for the habeas petition, and whether the court has personal jurisdiction over the Secretary of Defense. A third question certified for appeal was whether the president has the authority “to designate as an enemy combatant an American citizen captured within the United States, and, through the Secretary of Defense, to detain him for the duration of the armed conflict with al Qaeda.” The fourth question concerned the burden the government must meet to detain an enemy combatant. The fifth is whether or not Padilla has the right to “present facts” in support of his habeas petition. Mukasey said his December rulings on the third through the fifth questions “related principally to conflicts long past that others may find different in some relevant respect from the one at hand,” a reference, in part, to the U.S. Supreme Court’s decision on the trial by military commission of German saboteurs during World War II in Ex Parte Quirin, 317 U.S. 1 (1942). “As I noted in the Dec. 4 opinion, ‘it would be a mistake to create the impression that there is a lush and vibrant jurisprudence governing these matters,’” the judge said. “There isn’t.” ALL WRITS ACT Finally, the judge certified for the 2nd Circuit the following question: “Was it a proper exercise of this court’s discretion and its authority under the All Writs Act to direct that petitioner be afforded access to counsel for the purpose of presenting facts in support of his petition?” The All Writs Act empowers judges to issue orders that are necessary or appropriate in aid of their jurisdiction over a case. Newman and Patel argued that the request for an interlocutory appeal was untimely, but Judge Mukasey said sending the case to the circuit “is likely to advance materially the ultimate termination of the litigation,” the standard for interlocutory appeals under 28 U.S.C. �1292(b). Deputy Solicitor General Paul D. Clement, Assistants to the Solicitor General David B. Salmons and Sri Srinivasan, Department of Justice Attorney Jonathan L. Marcus, and Assistant U.S. Attorney Eric Bruce represented the government.

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