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Prosecutors are telling a federal appeals court that President George W. Bush can hold a U.S. citizen as an enemy combatant in the war against al-Qaida, and a district court judge does not have the authority to give that citizen access to counsel. In a brief filed with the 2nd U.S. Circuit Court of Appeals in the closely watched habeas corpus case Padilla v. Rumsfeld, the government contends that Southern District of New York Judge Michael B. Mukasey erred in ruling that Jose Padilla could meet with his lawyers. “The laws and customs of war recognize no right of enemy combatants to have access to counsel to challenge their wartime detention,” attorneys for the government said in their brief. Arguments over the detention of Padilla, who allegedly re-entered the United States last year to pursue a plot to obtain and explode a radiological, or “dirty bomb,” are now expected to be heard by the 2nd Circuit sometime this fall. Southern District U.S. Attorney James B. Comey is appealing a Dec. 4 opinion by Mukasey, and a later opinion adhering to that order, in which the judge ruled that the executive branch must present at least “some evidence” justifying the detention of an American citizen. While Comey agrees that judicial review “at most” involves reviewing whether the president’s designation of an enemy combatant is supported by “some evidence,” he disagrees with Judge Mukasey over how that standard is satisfied and the degree to which defense lawyers can be involved, if at all. In his ruling, Mukasey also made it clear that Padilla, arrested last May as a material witness and then transferred into military custody on the order of the president, does not have the right to counsel under the Sixth Amendment. The judge said only that lawyers Donna Newman and Andrew Patel could meet with Padilla at a South Carolina military facility in order to help the judge review the factual basis for Padilla’s detention. In their own brief to the 2nd Circuit filed last week, Newman and Patel said the judge’s order did not go far enough. The attorneys challenge the authority of the president to designate enemy combatants without a declaration of war by Congress. They argue that the interrogation of Padilla to learn more about al-Qaida is being conducted in a manner that “shock[s] the conscience.” The due process guarantee of the Fifth Amendment, as well as the Sixth Amendment, give Padilla the right to counsel and to challenge his imprisonment in an adversary proceeding, they argue. ‘SOME EVIDENCE’ STANDARD The defense lawyers also challenge Mukasey’s ruling that the executive branch need only show that “some evidence” supports the enemy combatant designation. They contend that the “‘some evidence’ standard has never been applied as a burden of proof, but only as a standard of review,” and that Padilla has yet to have a hearing that comports with due process. “In short, since the ‘some evidence’ standard presupposes a predicate set of procedural protections of which Padilla received none, the district court had no basis for employing the ‘some evidence’ standard,” the lawyers say. The government’s brief returns to several arguments that were rejected by Judge Mukasey. Comey and Assistant U.S. Attorney Christine H. Chung said the lower court erred in finding that Secretary of Defense Donald Rumsfeld was the proper respondent for Newman’s petition for a writ of habeas corpus. The only proper respondent, they argue, is the commander of the Naval brig in South Carolina. Moreover, Judge Mukasey did not have jurisdiction to consider the petition, the government said, because the “habeas statutes confine district courts to issuing the writ ‘within their respective jurisdictions’ … a limitation intended to prevent habeas courts from reaching beyond their territorial borders.” The government also renewed its attack on Newman’s claim that she has standing to represent Padilla as his “next friend,” arguing that she lacks the “significant relationship” needed to allow her to step in for an inaccessible detainee. Padilla, prosecutors emphasize, has no right to counsel because “he is being detained under the laws of war rather than under the domestic criminal laws.” And there is no basis for giving Padilla access to counsel “as a matter of judicial discretion under the appropriate standard of review,” prosecutors argue, saying the determination of enemy combatant status is a “core exercise” of the president’s authority as commander-in-chief that is “entitled to great deference.” The government then returned to the argument it unsuccessfully made after Mukasey agreed to reconsider his December ruling: that the interrogation of Padilla would be jeopardized if he is allowed to meet with defense counsel. Mukasey’s December opinion instructed the government to allow Newman and Patel access to their client, but the government quickly concluded that there were no set of conditions that would make such access acceptable. “Finally, effective interrogation of captured enemy combatants requires achieving an atmosphere of trust and dependency between the subject and his interrogators,” the government states in its brief. “Interposing counsel into the relationship would thwart development of the requisite trust and dependency, compromising the military’s ability to obtain vital intelligence from Padilla.”

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