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Department spokesperson Monica Good-ling said Bush was wielding these vast wartime powers with the noblest of intentions. "The United States has every interest in preventing harm from coming to the American people, but zero interest in detaining random, law-abiding Americans," she said.
Goodling also referred the Voice to a friendly outside expert, Robert Turner, co-founder of the Center for National Security Law at the University of Virginia and a former federal official. He was less restrained.
"The nature of war is that a lot of decisions have to be made quickly. One of the realities is, bad things happen to good people," said Turner. "Even if Padilla is innocent, which I believe he isn't, he's certainly not one of the top 100 tragedies of this war. The idea that we would rather let him kill 20,000 people rather than detain him when there is reasonable doubtthat's a tough question."
Yet when other terrorism suspects have been able to challenge the government in court, the truth has turned out to be tamer than officials initially claimed. The administration may wish to be taken at its word on Padilla, but its record raises some unwelcome doubt.
In announcing charges against young men in Detroit and Lackawanna, New York, federal officials gave the impression they had disrupted major sleeper cells and thwarted determined terrorists. But in Detroit, it has emerged that prosecutors derived their most damning information from a convicted con artist, currently in their custody, who told them he knew some of the four suspects.
In Lackawanna, six accused Arab Americans recently pleaded guilty to the relatively minor charge of providing "material support" to terrorist affiliates. They face sentences of up to 10 years, and despite the adamant claims of federal investigators, they were not found to have participated in a terrorist conspiracy.
In February a congressional audit revealed that, of the slew of convictions federal prosecutors had reported since September 2001 as terrorism-related, nearly half132 out of 288in fact had nothing to do with terrorism. And while at least 750 immigrants were detained and questioned by federal investigators immediately following the 2001 terrorist attacks, not one was charged in relation to the tragedies.
But the case of "American Taliban" John Walker Lindh, also deemed at one point to be an enemy combatant, casts the most substantive doubt yet on the administration's claims of sound judgment. Attorney General Ashcroft said at the start that Lindh was guilty of "conspiracy to kill nationals of the United States" as an "Al Qaeda-trained terrorist." Yet after a rigorous challenge in court, the government's original 10 counts against him shrank to one, and it was not directly related to terrorism.
Unlike Padilla, Lindh was captured among hostile forces, in Afghanistan, but he nonetheless received a civilian trial and had the opportunity to mount a stellar defense. His father, a corporate lawyer with California's reigning energy supplier, quickly retained powerhouse San Francisco attorney James Brosnahan. According to his firm biography, Brosnahan, in over 40 years in complex litigation, has repeatedly been ranked among the top trial lawyers in America and has twice argued before the U.S. Supreme Court. A thorough dissection in the March 10 New Yorker graphically details how miserably Lindh was treated by federal captors before his lawyers got involved. Afterward, Brosnahan and company blew holes through the government's inflated case.
With resources ample enough to send a private investigator to Afghanistan to verify Lindh's exact location on September 11, 2001, his lawyers negotiated for him to plead guilty to one count of contributing "services" to the Taliban, for which he is serving 20 years in a medium-security prison. In perhaps its most effective move, the team seized on indications that the feds had violated Lindh's right to due processmost egregiously by interrogating him for 54 days without a lawyer. As a part of his plea agreement, Lindh is now aiding government investigators.
Those less fortunate could end up like Padilla, especially if the administration is less judicious in naming enemy combatants than it claims to be. Federal prosecutors reportedly used the possibility of such designationand its implied loss of contact with a lawyer and other rightsas leverage during plea negotiations in Lackawanna. Lawyer Patrick Brown told the Voice that his client, Shafed Mosel, and at least one other suspect were offered immunity from being named enemy combatants as part of the deal if they would plead guilty. Brown says the U.S. attorney's office gave him the impression that a change in status "wasn't just a hypothetical, that it could happen. Getting the commitment that they wouldn't seek it was them really giving us something."
In a way, Padilla is fortunate. It is be-cause of the window during which he was held as witness and provided a lawyerand because his lawyer mounted a spirited challenge despite being unable to contact her clientthat the world knows as much as it does about his case. (In fact, the public likely knows much more than he does. The Defense Department will not confirm that Padilla is receiving lawyer Newman's mailings of legal papers.)
"If he didn't initially have counsel, who would know?" says Newman. She says she has no idea "what's being done to him" by the military interrogators. She read in the New Yorker that Lindh was "sometimes kept blindfolded, naked, and bound to a stretcher with duct tape. . . . fed only a thousand calories a day, and was left cold and sleep-deprived in a pitch-dark steel shipping container," and she knows that her client is less protected than Lindh was. Padilla technically shares the same status as the foreign combatants at Guantánamo Bay. They have been the subject of international concerns about torture, and as of last week, 18 of them had attempted suicide a combined total of 27 times. The Justice Department referred questions about Padilla's physical state to the Department of Defense, which did not return a Voice call.