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Government to fight Padilla access to counsel

'Dirty bomb' suspect held incommunicado for 10 months

From Phil Hirschkorn
CNN Washington Bureau

Jose Padilla
Jose Padilla

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• Presidential order: To hold Padilla as an enemy combatant  (FindLaw, PDF)external link
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NEW YORK (CNN) -- Federal prosecutors plan to appeal a judge's ruling permitting defense attorneys to meet with Jose Padilla, an alleged al Qaeda associate named an "enemy combatant" by President Bush and held incommunicado in a South Carolina Navy brig for the past 10 months.

James Comey, the U.S. attorney for the Southern District of New York, informed U.S. District Judge Michael Mukasey of the plan in a letter released Tuesday.

The government "continues to believe that Mr. Padilla ... poses a danger to the national security of the United States and whose interrogation will promote public safety," Comey said.

Padilla, 31, an American citizen with a criminal history, is alleged to have plotted to detonate a "dirty bomb" -- a conventional bomb laced with radioactive material -- inside the United States.

Comey said the Justice Department seeks an expedited appeal of Mukasey's ruling two weeks ago that ordered the government to make arrangements for Padilla's New York-based attorneys to visit him.

Mukasey had scheduled a hearing for Thursday to iron our the details.

"I think it's another delaying action," said Padilla attorney Donna Newman in a telephone interview.

Since President Bush declared Padilla an enemy combatant, his administration has consistently sought to block Padilla from meeting his lawyers under any circumstances, arguing that any access to attorneys might compromise Padilla's ongoing interrogation by the military.

Mukasey's called that view "speculative" and vowed to impose conditions for a visit should the parties fail to agree to them.

In their own letter to the judge, Newman and co-counsel Andrew Patel propose they be able to meet with Padilla for up to five hours a day for five consecutive days and "not separated from Mr. Padilla by bars, screen, glass or any other physical barrier."

They asked the judge to rule that their conversations could be subject to video, but not audio, monitoring to protect attorney-client privilege and that their notes "not be subject to inspection, reading or confiscation."

The attorneys asked the military discontinue, at least three days before their arrival, any "sensory deprivation" that may be imposed on Padilla as an interrogation technique.

They also want to review Padilla's medical and pharmacy records

"We are willing to abide by any directive of the court," Newman said, such as a gag order prohibiting them from divulging the contents of their meetings.

Citing their opposition to Mukasey's order, Comey said, "There is no possibility that any consultations with Padilla's counsel will result in agreed terms of attorney access."

In his letter, Comey revived another argument the government intends to pursue on appeal -- that jurisdiction does not lie with Mukasey's court, because Padilla is in custody in another federal district, a point Mukasey has rejected.

The FBI initially detained Padilla last May as he arrived at Chicago's O'Hare International Airport returning from a trip to Pakistan.

He had also spent time in Egypt, Saudi Arabia, and Afghanistan, according to the government.

Mukasey himself signed the material witness warrant used to hold Padilla.

Information about the alleged "dirty bomb" plot came in part from interrogations of the captured al Qaeda leader Abu Zubaydah.

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.

In December, Mukasey ruled that Bush's determination was lawful.

Padilla, born in Brooklyn and raised in Chicago, has served prison time for a juvenile murder in Illinois and for gun possession in Florida.


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