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Attorney: Padilla's detainment a 'constitutional concern'

From Phil Hirschkorn

NEW YORK (CNN) -- Decrying the U.S. government's decision to transfer her client to the custody of the U.S. military, an attorney for Jose Padilla, the suspect in an alleged dirty bomb plot, urged a federal court Tuesday to release him.

"A person is being detained on information -- the value of which, the credibility of which, and the reliability of which, we don't know," court-appointed attorney Donna Newman told reporters after a hearing in federal court.

Newman said she was troubled that captured Abu Zubaydah, a senior al Qaeda leader in U.S. custody, is reported to be a source of government information against her client.

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The Padilla case should be a "constitutional concern for everybody," Newman said. "He was taken and will now be detained in a military prison."

She also said it was unfair that a court order restricted what she could say about Padilla, while the government condemned him in public. "My client's voice, through me, is impeded, is hushed," she said.

While U.S. District Court Judge Michael Mukasey said he would consider Newman's motion, it was unclear what jurisdiction, if any, the court has in the case now that Padilla is in the custody of the U.S. military.

Meanwhile, a federal prosecutor revealed that a grand jury investigation into Padilla's alleged plot would continue.

A constitutional law professor said that since Padilla has been classified an enemy, or unlawful combatant, he can be detained indefinitely without having to bring charges against him. U.S. officials need only to supply evidence that Padilla at least planned to harm U.S. interests, said John McGinnis of Northwestern law School.

In Tuesday's court proceedings in New York, Newman prepared a motion, called a petition for a writ of habeus corpus, Monday after she learned that her client, a U.S. citizen, had been transferred from the Department of Justice to the custody of the Department of Defense.

Padilla, who also goes by the name of Abdullah Al Muhajir, was being held in a naval brig in Charleston, South Carolina. Padilla did not appear in court Tuesday.

Padilla has not been charged with any crime, but the Justice Department accused him of planning to build and detonate a radioactive dirty bomb in the United States, saying he had discussed the plan with senior al Qaeda leaders. He was arrested May 8 under a material witness warrant after he flew into Chicago from a flight that had originated in Pakistan, but the government only disclosed his capture Monday. (More on the arrest.)

The government had faced a Tuesday deadline to press criminal charges; instead the Justice Department labeled him an "enemy combatant" and transferred him to the Defense Department, which can hold him indefinitely.

Newman appeared Tuesday, along with two government prosecutors, before Mukasey in a federal courtroom in Manhattan.

Newman said it was difficult to respond to statements by Attorney General John Ashcroft and FBI Director Robert Mueller calling Padilla an "al Qaeda operative" engaged in a bombing plot "because he isn't accused of anything" in court.

Prior to his transfer, Newman had filed another motion to vacate the warrant on the grounds that Padilla's arrest was unlawful. Mukasey said the government withdraw its warrant Sunday evening. That document and all parts of the court record prior to Tuesday's hearing are under seal.

One federal judge in this same jurisdiction has ruled in the case of another post-September 11 detainee that the government's frequent use of the material witness warrant as an investigative and detention tool has been improper.

Although the argument may be moot in Padilla's case, Mukasey said he would review the matter. In the meantime, Mukasey said Newman's habeus petition should be served in South Carolina, and he would forward a copy to the Pentagon.

Newman said that after Padilla's arrest in Chicago, he was transferred to New York and detained in the high-security wing of the Metropolitan Correctional Center, a federal facility in Manhattan. The wing, known as 10 South, is where other terrorist suspects have been held, confined to isolated cells under under a 23 hour-a-day lockdown.

Anytime Padilla left his cell, even to come to court two or three times, his legs, arms and midsection would be shackled. Newman said she saw him frequently in jail, communicating through a metal screen, and that she was concerned the government may have been eavesdropping on their conversations. Padilla was not able to make phone calls from jail, she said.

Newman would not characterize Padilla's response to the nature of the government's public accusations. She said, however, that she was troubled that captured Abu Zubaydah, a senior al Qaeda leader in U.S. custody, is reported to be a source of government information against her client.




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