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Judge asked to reconsider lawyer visits for 'enemy combatant'
From Phil Hirschkorn
NEW YORK (CNN) -- Federal prosecutors Wednesday told a judge he made a mistake when he ordered the government to allow defense attorneys to visit Jose Padilla, a U.S. citizen deemed an al Qaeda operative, declared an "enemy combatant" by President Bush, and held incommunicado for the last seven months in a Navy brig. But U.S. District Judge Michael Mukasey said he was puzzled by the prosecution's motion for reconsideration. Deputy Solicitor General Paul Clement told Mukasey that his December 4 order, which declared lawful the government's unusual detention of Padilla, had overlooked that granting Padilla access to attorneys might compromise his ongoing military interrogation. The Justice Department claims defense attorney visits with Padilla might cause "grave damage to national security interests." In court papers, Clement and James Comey, the U.S. Attorney for the Southern District of New York, call Padilla "a source who may well have information about al Qaeda's organization, the identity of its associates inside and outside the United States, and the nature of its plans for further attacks against the United States citizens and interests." In defense documents, attorneys Donna Newman and Andrew Patel call that assessment "nothing more than conjecture." The attorneys say any information Padilla might have "is almost certainly stale due to the passage of time, as well as international events" since his arrest last May. "One cannot discount the obvious -- Padilla has no information to provide," Newman and Patel wrote. The prosecution argument relies in part on an unclassified declaration from Vice Admiral Lowell Jacoby, the head of the Pentagon's Defense Intelligence Agency. Jacoby said interrogators strive to create a "sense of dependency and trust" in the captives, over a period of months or even years. "The objective is to produce a relationship in which the subject perceives that he is reliant on his interrogators for his basic needs and desires," prosecutors added. The strategy would be disrupted by the weeklong visit the defense attorneys propose, according to the government. Since the September 11, 2001 terror attacks, Jacoby asserted the government has thwarted more than 100 potential terrorist attacks on the United States through worldwide intelligence gathering methods that include interrogations of detainees. For example, it was the captured al Qaeda operations chief, Abu Zubaydah, who told U.S. authorities about meeting Padilla to propose stealing radioactive material to detonate a dirty bomb, possibly in Washington. Jacoby also worried that Padilla, 31, who has been tried before and spent time in prison for a juvenile murder in Illinois and for a gun violation in Florida, would clam up if he knew attorneys were working on his behalf. Mukasey addressed this issue in his decision last month, saying "interference with interrogation would be minimal or nonexistent" from attorney visits. On Wednesday, Mukasey invited the parties to submit additional paperwork due later this month, but he did not schedule another court hearing or indicate whether he might decide the question without one. Bush declared Padilla an enemy combatant June 9 and transferred him to military custody after he had been in jail for a month. Mukasey ruled the president "is authorized under the Constitution and by law to direct the military to detain enemy combatants," even if, like Padilla, they are U.S. citizens and weren't captured on the battlefield. The FBI initially detained Padilla last May as he arrived at Chicago's O'Hare International Airport from overseas, using a material witness warrant signed by Mukasey to hold him. Padilla, born in Brooklyn and raised in Chicago, converted to Islam in prison and took the name Abdullah al Muhajir when he lived in Egypt. He has also spent time in Saudi Arabia, Pakistan, and Afghanistan, according to the government. The only other publicly known enemy combatant is also a U.S. citizen, Yaser Hamdi, who is accused of fighting alongside the Taliban, the toppled Islamic extremist movement that ran Afghanistan for five years and gave safe harbor to al Qaeda's leaders, including Osama bin Laden. Only last week, the U.S Court of Appeals, 4th Circuit, in Richmond, Virginia concurred with Mukasey's view that holding detainees as uncharged enemy combatants is lawful when they are a threat to national security. That Hamdi decision has no bearing on the Padilla case. The issue may ultimately end up in the Supreme Court. CNN's Barbara Starr and Terry Frieden contributed to this story.
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