Appeals Court to Consider Padilla Case

Ruling Has Vast Implications on Fight Against Terrorism

For more than three years, Jose Padilla, an alleged al Qaeda operative, has been held without trial, much of the time without access to a lawyer.

A former Chicago gang member and Muslim convert, Padilla was arrested at Chicago's O'Hare International Airport in May 2002. A month later, he was designated an "enemy combatant" by President Bush and sent to a naval brig in South Carolina.

On Tuesday , the U.S. Court of Appeals for the 4th Circuit is scheduled to convene in Richmond to consider a question with vast implications for civil liberties and the fight against terrorism: whether the president can indefinitely detain, without criminal charges, a U.S. citizen captured on American soil.

Federal prosecutors assert that Bush not only had the authority to order Padilla's detention but that such power is essential to preventing attacks.

"In the war against terrorists of global reach, as the Nation learned all too well on Sept. 11, 2001, the territory of the United States is part of the battlefield,'' prosecutors argued in legal briefs. The government says Padilla trained at al Qaeda camps and was planning to blow up apartment buildings in the United States.

Lawyers for Padilla, joined by a host of civil liberties organizations, say Padilla's detention is illegal. If not constrained by the courts, they argue, it could lead to the military being allowed to hold anyone from protesters to people who check out the wrong books from the library.

"Once you open the door to a power like that, where does it end?'' Andrew Patel, a lawyer for Padilla, said in an interview. "There is a certain bedrock way we do things as Americans. If we believe someone has done something bad, we take them to court and prove it. It's a grade school civics thing.''

The debate has featured the unusual spectacle of former Attorney General Janet Reno, whose Justice Department prosecuted major terrorism cases in the Clinton administration, weighing in legally on behalf of someone the Bush administration calls a notorious terrorist. She and several other former Justice officials filed a brief supporting Padilla's effort to challenge his detention.

The Bush administration "claims a virtually unlimited right to ignore Congress's judgment about what powers are necessary to protect the country against terrorist attack,'' the brief said, arguing that Padilla could be charged under a variety of laws in the criminal justice system.

Padilla is one of two U.S. citizens held as enemy combatants since the terrorist attacks on the World Trade Center and Pentagon. The other, Yaser Esam Hamdi, was released and flown to Saudi Arabia last year after the U.S. Supreme Court upheld the government's power to detain him but said he could challenge that detention in U.S. courts.

Hamdi and Padilla are two of several recent court cases that have raised the most significant wartime civil liberties issues since World War II -- and that are gradually clarifying presidential powers to fight the war on terrorism. But there is a key difference between the two: Hamdi was captured on a battlefield in Afghanistan with forces loyal to that country's former Taliban rulers, while Padilla was arrested in the United States.

With the Justice Department seeking to extend the detention power it won in the Hamdi case to U.S. citizens captured domestically, legal experts are closely watching the 4th Circuit's decision, along with a likely Supreme Court review after that.

"I think Padilla is mighty important. This is the case that really matters most,'' said Stephen Saltzburg, law professor at George Washington University.

The government originally described Padilla as plotting with al Qaeda to detonate a radioactive "dirty bomb,'' but has since focused on allegations that he planned to blow up apartment buildings by filling them with natural gas.

In briefs filed with the 4th Circuit, prosecutors said Padilla conducted research on the construction of an atomic bomb but that al Qaeda leaders thought the operation was too complicated. Al Qaeda operations chief Khalid Sheik Mohammed suggested that Padilla instead focus on the apartment building plan, the briefs said.

Padilla "accepted the assignment,'' the court papers said, and departed for the United States with $10,500 in al Qaeda cash, along with travel documents and a cell phone. His journey through the U.S. legal system began when he was arrested by the FBI on a material witness warrant in connection with a terrorism investigation in New York.

After Bush designated Padilla as an enemy combatant on June 9, 2002, Padilla's lawyers challenged his detention in federal court in New York. In 2003, the U.S. Court of Appeals for the 2nd Circuit ruled for Padilla.

The government then appealed to the Supreme Court, but the court ruled that Padilla's petition should have been filed in South Carolina. After Padilla re-filed there, a federal judge earlier this year ordered the government to charge Padilla with a crime or release him within 45 days.

"To do otherwise,'' the judge wrote, "would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties.''

The government is now appealing that decision to the Richmond-based 4th Circuit, which is generally regarded as the nation's most conservative appellate court. The 4th Circuit ruled in the government's favor in the Hamdi case, saying that the military -- not the courts -- had sole authority to wage war and that courts should defer to battlefield judgments. The names of the three 4th Circuit judges who will hear Padilla's case will not be announced until Tuesday.

Donald Rehkopf, co-chair of the military law committee of the National Association of Criminal Defense Lawyers -- which filed a brief on Padilla's behalf -- said the president is seeking "the kind of executive power that the King of England had, which is why we had the Revolution in the first place.''

That would mean, he said in an interview, that "they can arrest you in the middle of the night and take you away.''

But Richard Samp, chief counsel for the Washington Legal Foundation, a conservative public-interest law firm that intervened for the government, said the enemy combatant designation is needed in situations where investigators know someone is a threat but can't make a case in a traditional criminal court.

If the government loses the argument on Padilla, Samp said, "I think public safety would be endangered.''

Jerry Markon
Washington Post Staff Writer

© 2005 The Washington Post Company

No Gonzo, Thank You

Five From the 5th Circuit Mentioned for High Court

Southern Appeals Bench Known for Conservatism

It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.

But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land -- but it is still at the center of politics and history.

As both sides dig in for what is expected to a be contentious ideological struggle over a successor to Sandra Day O'Connor on the Supreme Court, five of the judges mentioned as possible nominees are on the 5th Circuit: Edith Brown Clement, Emilio M. Garza, Edith Hollan Jones, Priscilla R. Owen and Edward C. Prado.

"A court is made up of more that just individual judges. It has a tone or a mood. The fact that the president is looking at so many judges from the 5th Circuit tells us more or less what he may be looking for," said University of Pittsburgh law professor Arthur D. Hellman. "He may not want just a conservative judge, but one that comes from a conservative environment and is more likely to think in those terms."

The five judges will face varying degrees of opposition. Democrats say two, Jones and Garza, are unacceptable because the judges have denounced Roe v. Wade , the 1973 decision establishing a woman's right to an abortion. Clement has fewer opinions on social issues to parse, and Prado, who was appointed by Bush, is considered moderate by many Democrats.

The court -- which covers Texas, Mississippi and Louisiana -- is known for its independence, and the Supreme Court has reversed it in a number of high-profile cases. The high court has also openly rebuked the 5th Circuit in death penalty cases, signaling that the appeals court crossed the line in denying defendants' rights.

On one occasion, O'Connor, writing for the majority, accused the lower court of applying its own "restrictive gloss" to the standard set by the Supreme Court for establishing a condemned convict's retardation. In another recent capital case, the Supreme Court reversed the 5th Circuit 6 to 3, stating that the appeals court was wrong not to order a new trial in the face of strong evidence that prosecutors deliberately excluded blacks from the jury. The majority opinion, by Justice David H. Souter, said the 5th Circuit decision was a "dismissive and strained interpretation" of how the Supreme Court had previously ruled.

In that case, some legal analysts said, the high court expressed its frustration because it had sent the same case back to the circuit court two years earlier with an 8 to 1 majority, directing the court to review its decision.

In another key case, the Supreme Court voted unanimously to reverse the 5th Circuit and overturned the conviction of accounting firm Arthur Andersen over jury instructions.

Still, the lower court shows no sign of backing down.

"It really is quite unusual for a lower federal court to thumb its nose at the Supreme Court so explicitly," said Peter B. Edelman, a professor of constitutional law at Georgetown University law school. "If you look at some of the other courts, I doubt you'll find the same kind of flaunting defiance."

Theodore M. Shaw, the director of the NAACP Legal Defense Fund, said it is "extraordinary" how many times the Supreme Court felt it necessary to chastise the 5th Circuit. "We are not talking about a liberal Supreme Court," he noted. "We're talking about a conservative Supreme Court that apparently became frustrated with the 5th Circuit's failure to meaningfully review criminal convictions for constitutional infirmities . . . cases involving prosecutorial misconduct, police misconduct, racial discrimination. Those problems were not being addressed by the 5th Circuit, so the Supreme Court had to step in."

Others suggest that too much can be read into the high court's reversals and reprimands. "Reversals are overrated," said John S. Baker Jr., who teaches criminal law at Louisiana State University. "A court should follow Supreme Court rulings as precedent dictates. But there can be a value in a judge adding a viewpoint that encourages the Supreme Court to reconsider the issue."

Tom Fitton, president of Judicial Watch, a conservative watchdog group, said of the death penalty reversals: "It tells me the Supreme Court is to the left of the majority of Americans, which favor the death penalty. The 5th Circuit's rulings reflect the majority."

Of the five judges mentioned for the Supreme Court, Jones, 56, is considered by lawyers who practice before the 5th Circuit to be the most intellectual, the most abrasive and the most ideological. Although she is a favorite of the Christian right, both Democrats and Republicans question whether Bush would risk the inevitable Senate fight if he nominated her.

In an opinion last year, she criticized the Supreme Court on Roe , writing: "The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy . . . is that the facts no longer matter. This is a peculiar outcome for a court so committed to 'life' that it struggles with the particular facts of dozens of death penalty cases each year."

Both Jones and Garza, 57, were serious Supreme Court candidates for Bush's father, President George H.W. Bush. Jones was interviewed for the appointment that went to Souter, and Garza was brought to Bush's home in Maine to interview for the seat that went to Clarence Thomas. This go-round, some conservatives have pushed Garza instead of the president's friend and attorney general, Alberto R. Gonzales, if the president wants to appoint the first Hispanic to the court.

Clement, 57, is considered conservative but has not left much of a paper trail. Lawyers interviewed for the Almanac of the Federal Judiciary described her while a district judge as pro-government, pro-business and pro-defendant in civil cases.

Democrats consider Prado, 58, to have an even temperament and a balanced approach to the law. As a district judge, he once overturned a death sentence and ruled that background checks for handgun purchases did not violate the Constitution. Democratic lawmakers who met with Bush to discuss the court reportedly told him that Prado could be confirmed.

Legal scholars have been studying the ideological change in the 5th Circuit, which they pinpoint to 1981, when President Ronald Reagan committed to appointing conservative judges.

In his 1981 book "Unlikely Heroes," writer Jack Bass described how a group of four legendary judges dominated the court in the 1950s and '60s, aggressively interpreting the Supreme Court's civil rights rulings to accelerate racial equality in a resistant South.

The 5th Circuit of today is made up of 16 active judges, 12 of whom were appointed by Republican presidents. Because it covers Texas -- which has the highest execution rate in the country -- the court sees a lot of death penalty appeals. Most frustrating to foes of the death penalty and to civil rights lawyers is that the court has a record of rarely siding with defendants.

Last year, even conservative lawyers paused when a three-member panel of the court ruled 2 to 1 that a death penalty defendant was not entitled to a new trial even though his attorney had slept through part of his trial. "It would seem to anyone in support of the death penalty that a defense attorney ought not sleep through a trial," Shaw said.

The majority, which included Jones, wrote that it "cannot determine whether [the defense attorney] slept during a 'critical stage' " of the trial. When the full 5th Circuit reviewed the decision, the court reversed itself.

"It is not a happy place for civil rights lawyers to be," said Mary Howell, a lawyer in New Orleans who has argued before the court. "For many of us, practicing before the court means avoidance. What's unfortunate is that lawyers are becoming very selective about which cases they chose to take to the court, and many cases that have merit don't make the cut. It has had a chilling effect."

Lois Romano
Washington Post Staff Writer
Tuesday, July 19, 2005; Page A08

Staff writer Peter Baker and research editor Lucy Shackelford contributed to this report.

A Warning from Israel

What May Come After the Evacuation of Jewish Settlers from the Gaza Strip

We feel that it is urgent and necessary to raise the alarm regarding what may come during and after evacuation of Jewish settlers from the Gaza Strip occupied by Israel in 1967, in the event that the evacuation is implemented.

We held back on getting this statement published and circulated, seeking additional feedback from our peers. The publication in Ha'aretz (22 June 2005) quoting statements by General (Reserves) Eival Giladi, the head of the Coordination and Strategy team of the Prime Minister's Office, motivated us not to delay publication and circulation any further. Confirming our worst fears, General (Res.) Eival Giladi went on record in print and on television to the effect that "Israel will act in a very resolute manner in order to prevent terror attacks and [militant] fire while the disengagement is being implemented" and that "If pinpoint response proves insufficient, we may have to use weaponry that causes major collateral damage, including helicopters and planes, with mounting danger to surrounding people."

We believe that one primary, unstated motive for the determination of the government of the State of Israel to get the Jewish settlers of the Qatif (Katif) settlement block out of the Gaza Strip may be to keep them out of harm's way when the Israeli government and military possibly trigger an intensified mass attack on the approximately one and a half million Palestinians in the Gaza Strip, of whom about half are 1948 Palestine refugees.

The scenario could be similar to what has already happened in the past - a tactic that Ariel Sharon has used many times in his military career - i.e., utilizing provocation in order to launch massive attacks.

Following this pattern, we believe that Prime Minister Ariel Sharon and Defence Minister Shaul Mofaz are considering to utilize provocation for vicious attacks in the near future on the approximately one and a half million Palestinian inhabitants of the Gaza Strip: a possible combination of intensified state terror and mass killing. The Israeli army is not likely to risk the kind of casualties to its soldiers that would be involved in employing ground troops on a large scale in the Gaza Strip. With General Dan Halutz as Chief of Staff they don't need to. It was General Dan Halutz, in his capacity as Commander of the Israeli Air Force, who authorized the bombing of a civilian Gaza City quarter with a bomb weighing one ton, and then went on record as saying that he sleeps well and that the only thing he feels when dropping a bomb is a slight bump of the aircraft.

The initiators of this alarm have been active for many decades in the defence of human rights inside the State of Israel and beyond. We do not have the academic evidence to support our feeling, but given past behavior, ideological leanings and current media spin initiated by the Israeli government and military, we believe that the designs of the State of Israel are clear, and we submit that our educated intuition with matters pertaining to the defence of human rights has been more often correct than otherwise.

We urge all those who share the concern above to add their names to ours and urgently give this alarm as wide a circulation as possible.

Circulating and publishing this text may constitute a significant factor in deterring the Israeli government, thus protecting the Palestinian population in the Gaza Strip from this very possible catastrophe and contributing to prevent yet more war crimes from occurring.

Please sign, circulate, and publish this alarm without delay!

Please send notification of your signature to Tamar Yaron tiyaron@hazorea.org.il

WE WOULD ALSO APPRECIATE RECEIVING NOTIFICATION IF THE ALARM WAS PUBLISHED IN ANY MEDIA AND/OR IF IT WAS SENT TO A GROUP DISTRIBUTION LIST.

Uri Davis, Sakhnin, uridavis@actcom.co.il , Ilan Pappe, Tiv'on, pappe@poli.haifa.ac.il, and Tamar Yaron, Kibbutz Hazorea, tiyaron@hazorea.org.il

Sharon Threatens To Invade Gaza

BEN LYNFIELD
IN JERUSALEM

ITS forces massed on the border with Gaza, Israel yesterday threatened a large-scale invasion if the Palestinian president, Mahmoud Abbas, did not move decisively to stop Hamas rocket attacks on Israeli targets.

"I have spoken to the heads of the security establishment and informed them that there are to be no restraints on our operations to stop the attacks on towns and communities within Gaza and along the border," the Israeli prime minister, Ariel Sharon, told his cabinet. It was his sternest warning yet to the Palestinian president.

Mr Abbas told Hamas in a speech on Saturday night that the attacks were harming Palestinian interests and that the Palestinian Authority (PA) would not tolerate a continuation of the violence.

But Hamas defied him again yesterday, firing early in the day at the southern Israeli town of Sderot and later wounding six Israelis in shootings at settlements in the Gaza Strip.

Mr Abbas was in an unenviable position last night, caught between the prospect of an Israeli move that would destroy what is left of his biggest achievement - the ceasefire agreed in February - and a major internal battle if he takes further steps against Hamas.

The PA appealed yesterday to the United States, the European Union and Russia for help in stopping an Israeli incursion. "If the Israeli government continues with its steps, it will destroy all the efforts to impose the rule of law and also the idea of a peaceful withdrawal from Gaza," Saeb Erekat, a Palestinian negotiator, said.

Israel is planning to evacuate its 21 settlements from the coastal enclave starting next month, and Mr Sharon has said repeatedly he would not allow a situation in which departing settlers and soldiers evacuating them were fired upon.

The US Secretary of State, Condoleezza Rice, is expected to visit Israel and the PA areas later this week to try to avert a conflagration and keep the withdrawal plans on track.

Israel ratcheted up the pressure still further yesterday by launching at least one missile at a car in the northern Gaza town of Beit Lahiya, an area often used as a staging ground for rocket attacks. Palestinian reports said one bystander was wounded.

Earlier, an Israeli sniper assassinated a leader of the armed wing of Hamas in the southern Gaza town of Khan Yunis as he left his home, according to Palestinian sources.

Said Siyyam, said by the Israeli army to have been involved in mortar and gun attacks on soldiers and settlers, was fired on from a watchtower at the Ganei Tal settlement, the sources added. The shooting came two days after seven Hamas militants were killed as Israel returned to its policy of targeted killings for the first time since February.

Hamas later launched rockets at the Neve Dekalim settlement, wounding four people, two of them seriously. Another two people were wounded in a subsequent attack on the site.

Ibal Giladi, the Israeli coordinator of the Gaza withdrawal, said yesterday that Mr Abbas should be given a chance to rein in Hamas. "It is not necessary to conquer a part of Gaza," he said. "The Israel defence forces must act in a manner that halts this [rocketing] activity on the one hand, while on the other hand does not stop activity by others that we have an interest in encouraging."

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http://www.scotsman.com/?id=1643102005