Don't be fooled by the Justice Department's declaration Wednesday that it is delighted with the results of a federal court order in the case of the alleged dirty bomb suspect Jose Padilla. The feds did win recognition of an important presidential power. But U.S. District Court Judge Michael B. Mukasey also gave Padilla and his attorneys something to smile about as well.
Actually, the decision is more favorable to Padilla than it is to the White House. His lawyers have the power to argue on his behalf, the court noted, and Padilla has the right to see those attorneys so that, together, they can better challenge the government's decision to detain him as an enemy combatant. Unless the government appeals that part of the ruling to the 2nd U.S. Circuit Court of Appeals, this means that Padilla already will have achieved a level of due process that fellow alleged "enemy combatant" Yaser Esam Hamdi has not.
Hamdi, like Padilla an American citizen, was captured in Afghanistan earlier this year and has been held without charges ever since by the military. Hamdi, too, initially got a federal trial judge to order the feds to give him access to his attorneys. But the Justice Department got the 4th U.S. Circuit Court of Appeals to block that access for the time being. Why the difference between the two men? The judge said it is mostly because Padilla had initially met with his lawyers before he was whisked out of civil control and taken into military custody a few months ago while Hamdi never was given any access to attorneys.
It's possible, indeed it's likely, that federal lawyers will ask the appeals court in the Padilla case to block his lawyers from visiting him in the brig. But until they make that request, and until an appeals court agrees that such attorney-client visits might compromise the war on terror, Padilla is sitting pretty compared to Hamdi. You cannot challenge the facts supporting your detainment unless you can investigate and evaluate those facts and you cannot do that without lawyers helping you.
It's true, as the Justice Department noted in a press release following the release of Judge Mukasey's order, that the court recognized "the President's long-standing authority to detain enemy combatants." That's an important statement the Justice Department will be able to use in future terror law cases and it even helps the feds as they continue their fight in the Hamdi case.
And equally pleasing, from the government's perspective, was the judge's analysis that "though unlawful combatants, unlike prisoners of war, may be tried and punished by military tribunals, there is no basis to impose a requirement that they may be punished. Rather, their detention for the duration of hostilities is supportable -- again, logically and legally -- on the same ground that the detention of prisoners of war is supportable; to prevent them from rejoining the enemy."
But after recognizing the White House's real and potential power over people like Padilla and Hamdi, Judge Mukasey then promptly recognized limits on that power. The Justice Department had argued that giving Padilla access to his attorneys would ruin their interrogations of him but the court found otherwise. The feds also had argued that Padilla would use his attorneys to spread messages to his purported al Qaeda buddies.
"Gossamer speculation," is how the judge characterized that claim.
"Although the government presents facts showing that Padilla had contact with and was acting on behalf of al Qaeda, there is nothing to indicate that Padilla in particular was trained to transmit information in the way the government suggests, or that he had information to transmit."
This clearly is not a ruling that gives Padilla a get-out-of-jail-free card. In fact, it is still very much a longshot that he'll be able to convince a court anywhere in this country that he deserves to be released, or at least charged with a crime. But the government didn't get the clear-cut legal sweep it was looking for, either. I suspect that Padilla's defenders are grateful that they can at least press the government a bit more on the allegations that have been made against him.
Even though the White House says that Padilla is beyond the reach of regular criminal or civil law, the notion that allegations ought to be tested by evidence should be just as basic and fundamental as a president's power to prosecute a war.
By Andrew Cohen