Judge allows lawyers to visit 'enemy combatant'
A setback for the Bush administration
From Phil Hirschkorn
NEW YORK (CNN) -- A federal judge Tuesday ordered the government to allow lawyers to meet with alleged "enemy combatant" Jose Padilla, an American citizen accused of being an al Qaeda operative who plotted to detonate a radioactive "dirty bomb" inside the United States.
The decision is a legal setback for the Bush administration, which sought to block Padilla from meeting his defense lawyers under any circumstances, saying national security is more important than a detainee's right to counsel.
U.S. District Judge Michael Mukasey rejected the government's argument in a 35-page decision, ordering the government to permit Padilla's New York-based attorneys to visit the prisoner, who has been held incommunicado in a South Carolina Navy brig since June.
"Absent agreement, the court will impose conditions," Mukasey wrote. "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so."
Mukasey scheduled a March 27 court session to settle logistical details for the meetings.
He said Padilla "must have the opportunity to present evidence that undermines" the government's accusations stated publicly by Attorney General John Ashcroft, though no formal charges have ever been filed. "The only practicable way to present evidence, if he has any and chooses to do so, is through counsel," the judge said.
Mukasey is the same judge who ruled last December that the president's use of the "enemy combatant" classification is lawful. He also ruled that defense attorneys should be permitted to visit with Padilla, but Deputy Solicitor General Paul Clement and U.S Attorney James Comey asked Mukasey to reconsider that.
"The government's arguments here are permeated with the pinched legalism one usually encounters from non-lawyers," wrote Mukasey, who had signaled his impatience with the government's views at a January hearing.
A Defense Department memorandum opposing attorney-client visits stated that any access to attorneys might compromise Padilla's ongoing interrogation by the military, but Mukasey found holes in the argument.
The head of the Defense Intelligence Agency, Vice Adm. Lowell Jacoby, had said in the memo that attorney access might spoil the "sense of dependency and trust" Padilla may have developed with his interrogators. Jacoby revealed that the interrogators' technique is to create "a relationship in which the subject perceives that he is reliant on his interrogators for his basic needs and desires."
Mukasey said the Jacoby memo omitted, even in a classified form, the substance of Padilla's interrogation and labeled as "speculative" the forecast that interrupting Padilla's interrogation might spoil it.
"He might then seek to better his lot by cooperating with his captors," Mukasey wrote, suggesting an alternate scenario.
The government also contended that Padilla, despite 10 months in captivity since his initial arrest, could provide useful information about future al Qaeda plots to attack the United States and its interests overseas or about the terrorist organization's recruitment, training, structure, operations, and operatives at large.
Defense attorneys Donna Newman and Andrew Patel have called the government's valuation of Padilla as an intelligence source "disingenuous conjecture."
They could not be immediately reached for comment.
A spokesman for Comey said prosecutors were reviewing the Mukasey decision and could not say whether the government would appeal.
The FBI initially detained Padilla, 31, last May 8 as he arrived at Chicago's O'Hare International Airport from overseas, under suspicion that he was plotting to steal radioactive material to detonate a so-called "dirty bomb" -- a conventional explosive laced with radioactive material -- possibly in Washington, D.C.
A key tip about Padilla came from early interrogations of top al Qaeda lieutenant Abu Zubaydah, officials said.
Mukasey himself signed the material witness warrant used to hold Padilla. Bush declared Padilla an enemy combatant after he was jailed for a month, transferring him from Justice Department to Defense Department custody before he was formally charged with any crime.
"At a minimum, had the government permitted Padilla to consult with counsel at the outset, this matter would have long since been decided in this court," Mukasey wrote.
Padilla, born in Brooklyn and raised in Chicago, has served prison time for a juvenile murder in Illinois and for a gun possession in Florida. He 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.