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U.S. can hold 'dirty bomb' suspect

Judge allows attorney access for Padilla

From Phil Hirschkorn

Jose Padilla
Jose Padilla

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NEW YORK (CNN) -- A judge ruled Wednesday that the federal government can hold the man accused of trying to carry out an al Qaeda "dirty bomb" plot, saying the president can detain enemy combatants even if they are U.S. citizens.

The judge also granted a defense motion allowing the suspect, Jose Padilla, to meet with his attorneys, which the government had not allowed.

U.S. District Court Judge Michael Mukasey's 102-page decision concludes that President Bush "is authorized under the Constitution and by law to direct the military to detain enemy combatants."

Padilla has been in custody since his arrest on a material witness warrant on May 8 at Chicago's O'Hare International Airport. The government alleges he was part of a scheme by al Qaeda to explode a conventional bomb laced with radioactive material, possibly in Washington, D.C.

Defense attorneys Donna Newman and Andrew Patel argued his detention is unconstitutional and demanded they have access to Padilla, who has been held incommunicado in military custody since June.

Mukasey ruled that Padilla might now consult with those attorneys. The judge denied the government's request to transfer the case from his jurisdiction to South Carolina, where Padilla is being held in a Navy brig.

Mukasey also said he would review the president's evidence to justify his finding that Padilla is an enemy combatant.

On the central legal question in the case, Mukasey sided with the government.

The president's powers as commander-in-chief include "the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil," Mukasey wrote.

The judge ruled that it didn't matter that "courts are functioning," that there is no declaration of war with Afghanistan or that the "current conflict with al Qaeda ... can have no clear end," as Padilla's attorneys pointed out.

War declaration not necessary, judge says

Attorneys argued about Jose Padilla's legal rights during June hearings.
Attorneys argued about Jose Padilla's legal rights during June hearings.

"A formal declaration of war is not necessary in order for the executive to exercise its constitutional authority to prosecute an armed conflict -- particularly when, as on September 11, the United States is attacked," Mukasey wrote, citing the Korean, Vietnam, and Persian Gulf wars, and the Kosovo bombing campaign.

Mukasey said the president's actions were bolstered by Congress' joint resolution, which authorizes the president to use "all necessary and appropriate force" to retaliate for the September 11 terrorist acts, and by the antiterrorist USA Patriot Act, which Bush signed in October 2001.

Mukasey set a December 30 hearing to set the ground rules for Padilla meeting his attorneys.

"It's a significant decision. It's certainly a thorough decision," Newman said. She said she was pleased that she had won the right to meet with Padilla again and to keep the case in New York.

The Justice Department welcomed the decision, spokeswoman Barbara Comstock said.

"In times of war, the president must be able to protect our nation from those who join with our enemies to harm innocent Americans. The president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives," she said. "The department will review today's opinion in light of our duty to take all steps possible within the law to protect the American people."

Unclassified document is only public evidence

Padilla, 31, was born in Brooklyn and grew up in Chicago, where he was convicted as a juvenile of murder. He later served time in Florida on a weapons charge.

Later, after converting to Islam, he moved to Egypt and took the name Abdullah al Muhajir. He is divorced and has one son, who his attorneys say he was planning to visit when he returned to the United States in May.

Defense Secretary Donald Rumsfeld has said the Pentagon's main interest in holding Padilla is to obtain information to prevent further terrorist acts.

The only public evidence against Padilla is an unclassified declaration by Defense Department official Michael Mobbs, who alleged that Padilla traveled last year to Saudi Arabia and Afghanistan, where he allegedly met with al Qaeda's former chief of operations, Abu Zubaydah, who was captured in Pakistan earlier this year.

The government contends that Padilla discussed stealing radioactive material within the United States to build a "dirty bomb" and that he researched the scheme at an al Qaeda safe house in Pakistan.

The Mobbs declaration was the basis of President Bush's finding on June 9 that Padilla was an enemy combatant. Attorney General John Ashcroft announced the arrest the following day via satellite from Moscow.

Mukasey, who signed the material witness warrant used to detain Padilla initially, issued an opinion earlier this year that the unusual and extensive use of such warrants in the September 11 investigation has been lawful.

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