Flashback: A Lifetime in Limbo

Jose Padilla indicted at last

A month after Padilla was arrested, Newman asked the judge to release her client, who had yet to be charged with a crime and was still being held as a witness. The day before Mukasey was expected to make his decision, the president issued his remarkable order that Padilla was an enemy combatant and should be rushed into incommunicado military custody. He was taken to the Naval Consolidated Brig in Charleston, South Carolina, where he remains today.

Newman didn't learn of Padilla's military detention until the next day. She immediately filed a habeas corpus petition, the centuries-old citizen's tool to protest imprisonment without due process.

Over the next six months, she and her co-counsel, Andrew Patel, exchanged a battery of briefs with the Justice Department. The administration said it knew from confidential informants that Padilla had traveled extensively through Arab and Muslim nations in the late 1990s and early 2000s, meeting with senior Al Qaeda leaders and plotting to build and detonate a radiological bomb in the U.S. The military wanted to hold Padilla indefinitely, not just because he was dangerous but to interrogate him—perhaps, as one intelligence official said, for "years."

Newman questioned how the administration could pluck an unarmed American from U.S. soil and make such allegations, while denying him the fundamental right to contest them. She immediately began to raise questions about the government's evidence, zeroing in on a Pentagon document that revealed some informants had not been "completely candid" and "[s]ome information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials."

In December Judge Mukasey ruled that Bush, like all presidents, has the right to hold enemy combatants, even Americans, incommunicado in times of war. But allowing for the possibility that Padilla might not actually be an enemy combatant, Mukasey said the administration would have to face a court challenge and make at least "some evidence" hold up in the end. That challenge, of course, would be feasible only if Padilla were permitted to meet with his lawyers.

The government refused and instead demanded the case be passed up to an appellate court. In April, Mukasey agreed. The parties are waiting for a hearing to be scheduled.

As far as the Bush administration is concerned, anyone who insists Jose Padilla must have his day in court is living in a dream world. Critics, the president's supporters say, have utterly failed to grasp the magnitude of the times. The U.S. is at war against evil, an elusive foe. In the fight to keep America safe from terrorism, the president claims sweeping authority, even the power to deprive his fellow citizens of due process, if it seems important to national security.

The administration knew that Padilla was nowhere near the point of detonating a bomb when he was arrested. Deputy Defense Secretary Paul Wolfowitz held a news conference to calm the public hours after Ashcroft's dramatic announcement. "There was not an actual plan," he said. "We stopped this man in the initial planning stages." He later said any plotting had amounted only to "loose talk." White House insiders reportedly were furious at Ashcroft for causing such a scare that the markets briefly plunged.

But after the September 2001 terrorist attacks, a wait-and-see approach is believed unacceptably risky. The administration has tended to operate by the "mosaic" theory, which holds that seemingly innocent, unrelated facts and people can actually belong to a larger, nefarious whole. The focus on sleeper cells reflects a similar view, that the very absence of obvious activity can, counterintuitively, bode ill.

Padilla's deep captivity is important not just because it keeps him from harming the public, but more so because he is a "very high" counterintelligence asset, according to Defense Department intelligence director Lowell Jacoby. The military is not interested in prosecuting him but rather in interrogating him, Jacoby told Judge Mukasey in January. Any outside contact, especially with a lawyer, would disrupt "the kind of relationship of trust and dependency necessary for effective interrogations."

Jacoby claimed an impressive track record, reporting, "It is estimated that more than 100 additional attacks on the United States and its interests have been thwarted since 11 September 2001 by the effective intelligence-gathering efforts of the Intelligence Community and others."

When Time recently ran an article challenging, in part, the detention of foreign combatants at Guantánamo Bay past the reported end of their interrogations, the Justice Department issued a scathing response. "The article implies once we get information out of an Al Qaeda operative telling us how they would like to kill us, the next logical step would be to release them to go carry out such operations—or at least bring in lawyers to facilitate their release," wrote public-affairs director Barbara Comstock in a letter to the editor that the agency disseminated widely.

The Justice Department was more diplomatic with the Voice. An official said last week, "The fact that America enjoyed so many years of peace prior to the attacks of September 11 has made war, and the things that go along with it, somewhat new to many Americans. This lack of experience with long-existing wartime authorities may mean that some misunderstand the steps that the government is lawfully taking to protect our nation from terrorism."

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