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Supreme Court to hear 'dirty bomb' suspect's appeal

From Bill Mears
CNN Washington Bureau

Jose Padilla
Jose Padilla

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WASHINGTON (CNN) -- The U.S. Supreme Court agreed Friday to decide if the government can hold Americans accused of being terrorists indefinitely and without due process.

The appeal of Jose Padilla could be heard the same day in April as the case of another U.S.-born "enemy combatant" suspect, Yaser Hamdi, who also is appealing his military detention. Padilla is accused of plotting to detonate a radioactive "dirty bomb" in the United States.

At issue is whether U.S. citizens arrested on American soil can be held incommunicado without charges. The case will test the government's power to interrogate American captives without allowing access to an attorney or the courts because they may be suspected of posing a future threat or knowing about pending attacks.

Padilla's appeal is the most important terrorism-related case that the justices will consider in the wake of the September 11, 2001, attacks, legal experts said.

President Bush and Congress produced sweeping anti-terror policies that critics say in many cases trample on the civil liberties of Americans. Legal scholars said Padilla's situation will go to the heart of fundamental constitutional protections.

"It's finally time [that] the basic questions about the scope of the president's power to hold people without the approval of the courts are really going to be confronted," said Thomas Goldstein, a leading appellate attorney who has argued dozens of cases before the Supreme Court. "If you're on U.S. soil, do you have a right to get into U.S. courts and have a lawyer?"

A federal appeals court had ordered Padilla released in January from military custody, saying the president had no authority to declare him an "enemy combatant." The court said authorities could transfer him to civilian custody, where criminal charges could be filed.

The Bush administration asked the Supreme Court to suspend that order until its appeal was decided. "The government will suffer irreparable harm" if Padilla is released, Solicitor General Ted Olson told the justices in a legal brief.

Padilla, born in Brooklyn, New York, was arrested at O'Hare International Airport in Chicago, Illinois, on a May 2002 flight from Pakistan. No charges have been filed against him, and access to counsel and family members has been denied.

He has been accused of meeting with al Qaeda's former operations chief, Abu Zubaydah, and discussing stealing radioactive material to set off a crude explosive device.

His appeal will serve as a companion case to that of Hamdi's. The justices accepted Hamdi's appeal last month.

Hamdi was born in Louisiana but grew up in Saudi Arabia. He was arrested on the battlefield in Afghanistan in November 2001 and has been in military custody since then. Like Padilla, no charges have been filed against him, and he was allowed to meet with counsel for the first time only two weeks ago.

The government had won its arguments in lower courts, but Hamdi's attorney, Frank Dunham, appealed to the Supreme Court.

One of Padilla's attorneys, Donna Newman, said she agreed with the decision to hear the two cases on the same day.

"This makes sense," she said. "Many of the same issues will be before the court with Hamdi. We are looking forward to the briefing, and we are looking forward to the argument, and ... we are confident we will prevail."

The Pentagon announced its interrogation of Padilla had ended last week. It said his attorneys would be granted access to him at the Charleston, South Carolina, naval station, where he has been detained incommunicado since his transfer to military custody in June 2002.

Newman and attorney Andrew Patel said they expect to visit Padilla on the military base within two weeks but added that the conditions of their visit are almost the opposite of what they requested. The government will monitor the meeting -- it will be videotaped -- and a member of the military will be present, Newman said.

Notes taken by the attorneys will be photocopied before they leave, and certain topics are off-limits, Newman said, though she could not disclose what those might be.

"It's not a confidential attorney-client meeting. It's a meeting to wave at your client," Newman said.

She called the Pentagon's move to allow attorneys to meet with Padilla "nothing more than a media event." "At least he will learn there are people out there who are fighting for him," she said. "That is valuable."

Newman met with Padilla more than 10 times in the Manhattan federal jail before his transfer to military custody.

The government is screening in advance the boxes of public documents and articles the attorneys are sending to Padilla.

"Everything we give to him will be reviewed," Newman said.

The attorneys' visit will be limited to one day. They had sought a five-day visit in U.S. District Court in New York.

In December 2002, Judge Judge Michael Mukasey ruled that defense attorneys should be granted access to Padilla. In December, a three-judge panel from the 2nd U.S. Circuit Court of Appeals ruled the president has no legal authority to detain an American citizen indefinitely without charges if that prisoner was not captured on a battlefield.

The nation's high court also will hear a third terrorism-related case in April, involving whether suspects held at the U.S. Navy base at Guantanamo Bay, Cuba, have a right to appeal their detention in civilian courts.

Until recently the Supreme Court was reluctant to get involved in other terrorism-related appeals. Some court watchers said the justices are aware they could ultimately establish new legal precedent in the midst of the undeclared war on terrorism.

"There are issues we have never dealt with before," said David Yalof, a political science professor at the University of Connecticut and author of "Pursuit of Justices." "And some of it has to be made up as we go along. It may be why the Supreme Court is not eager to circumvent the ongoing process. At the very least they wanted multiple [lower] courts to look at these cases before they got involved."

The Supreme Court has had a mixed record overseeing executive power in time of armed conflict.

During the Civil War, the justices did not intervene when President Lincoln suspended habeas corpus rights, allowing citizens to be held indefinitely without charges.

When the United States became involved in World War II, the court upheld President Franklin D. Roosevelt's power to detain Japanese-Americans in internment camps and to hold military tribunals for Nazi spies captured in the United States.

"The cases the court has heard in the past, particularly the ones around World War II, do point to some extent in the government's favor," Goldstein said. "They give the president room to maneuver. But we are still very much in uncharted waters.

"The Supreme Court has never confronted the question of an American being held here [in the United States], or where you have a whole group of people who are being held in a U.S. base at one time without access to courts whatsoever."

CNN's Phil Hirschkorn in New York contributed to this report.

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