A bipartisan group of prominent New York lawyers, former federal judges and former government officials has launched a fierce attack on the Bush administration’s conduct in the war on terror, charging that the detention of suspected terrorist Jose Padilla is unconstitutional.
The group, which includes a number of former high-ranking officials in Republican and Democratic Presidential administrations, made the accusation in an amicus brief filed in federal court in New York on July 30. The brief concerns the legal plight of Mr. Padilla, whose case has attracted international attention since he was arrested in Chicago for his alleged role in an Al Qaeda plot to detonate a radioactive “dirty bomb” on U.S. soil.
Mr. Padilla, who has been held incommunicado in a naval brig since June, hasn’t been formally charged with a crime and has been denied access to a lawyer. The Bush administration’s conduct poses an urgent threat to the Constitution and to the rule of law, the brief’s signers say.
“This is an extraordinary case,” Harold R. Tyler Jr., a former federal judge and longtime Republican who was brought in by President Gerald Ford to clean up the Justice Department after Watergate, told The Observer . “We have in this country something called habeas corpus, which guarantees that a person who is held incommunicado has to be produced in a court. The people in the government seem to have forgotten that. They should charge this man if they’ve got something against him. And they should give him right to counsel. These are all constitutional rights.”
Mr. Tyler, who as deputy attorney general under Mr. Ford was also an important mentor to a young prosecutor named Rudolph Giuliani in the mid-1970′s, continued: “I have been a longtime Republican, but I’m a disenchanted Republican in this case.”
The brief assails the Bush administration’s handling of the Padilla case in blunt terms, describing it as “one of the gravest threats to the rule of law, and to the liberty our Constitution enshrines, that this nation has ever faced.” A copy of the brief, which was filed in the U.S. Court of Appeals for the Second Circuit, was obtained by The Observer .
Mr. Padilla, who was designated an “enemy combatant” by President Bush in June, is being held in a military jail in South Carolina indefinitely. Because of the fundamental constitutional questions at the heart of the case, his situation has been loudly debated by pundits and elected officials, and a range of legal groups on the left and the right have weighed in with a half-dozen briefs on his behalf.
But this latest legal salvo is extraordinary for a number of reasons. Unlike other briefs, which were offered by groups that often weigh in on controversial issues, the signatories of this one are cautious legal professionals who tend to avoid public involvement in politically charged debates. What’s more, several of the signatories charging the Bush administration with violating the Constitution are active members of the Republican establishment.
In addition to Mr. Tyler, another signatory is Philip Allen Lacovara, former president of the District of Columbia bar and former deputy solicitor general under President Nixon who became part of the Watergate prosecution team. Mr. Lacovara also donated money to George W. Bush’s 2000 Presidential effort.
Other signatories have worked in various jobs in the U.S. national-security bureaucracy. Robert M. Pennoyer, for instance, is a well-known New York attorney who was a high-level official in the Department of Defense under President Dwight Eisenhower.
“These are people who have served in government and who have very different points of view on a whole range of things,” said Michael Posner, the executive director of the Lawyers Committee for Human Rights, which helped draft the brief. “But they are coming together in support of basic constitutional principles: the right to counsel, the right to be heard in court and the right to be charged with a crime.”
Among the other prominent lawyers who attached their names to the brief are Abner J. Mikva, a former federal judge who was White House counsel for two years in the Clinton administration; former federal judges William Norris and H. Lee Sarokin; New York–based white-shoe lawyers Donald Francis Donovan, Robert Juceam, Robert Todd Lang and Barbara Paul Robinson; and internationally known human-rights lawyers William Zabel and R. Scott Greathead.
The group’s decision to involve itself in the Padilla matter reflects growing alarm among legal observers of various ideological hues about the Bush administration’s approach to the case. Among the organizations that have already filed briefs are left-leaning ones like the American Civil Liberties Union and the Center for Constitutional Rights, and right-leaning groups like the Cato Institute.
An Enemy Combatant
Mr. Padilla, who was born in Brooklyn and moved to Chicago at a young age, was arrested in May as he flew from Pakistan to Chicago’s O’Hare International Airport. He was subsequently flown east for questioning in connection with his alleged knowledge of an Al Qaeda plot to detonate a dirty bomb in New York.
In June, President Bush declared him an “enemy combatant,” and he was taken from a New York cell to a naval brig in Charleston, where he’s been held incommunicado ever since. He has not officially been charged with a specific crime and has had no contact with his New York–based lawyer, Donna Newman. In essence, he has vanished from the legal system.
Last year, a federal judge ruled that Mr. Padilla had a right to counsel and to a hearing in court. The government has appealed that decision, arguing that continued incarceration is justified because intelligence shows that Mr. Padilla met with senior Al Qaeda leaders. Arguments could be heard in New York as early as September. (The case, which has come to be known as Padilla v. Rumsfeld , is being heard in New York because Mr. Padilla was in the city in June when President Bush declared him an “enemy combatant.”)
Enter the signatories of the latest brief.
Put in simple terms, they’re arguing that the rule of law depends on the right of defendants seized on U.S. soil to defend themselves in a courtroom setting. By denying Mr. Padilla these fundamental rights, they continue, the Bush administration is setting a dangerous precedent that could grant the executive branch unchecked power and erode every citizen’s constitutional rights.
“Throughout history, totalitarian regimes have attempted to justify their acts by designating individuals as ‘enemies of the state’ who were unworthy of any legal rights or protections,” the brief reads. “These tactics are no less despicable, and perhaps even more so, when they occur in a country that purports to be governed by the rule of law.”
The conditions of Mr. Padilla’s detention, the brief adds, sets a precedent for “rule at the whim of the Executive” and “strikes at the core of the liberty our Constitution safeguards.”
The conclusion: “Whatever he may have done, or planned to do, Padilla is an American citizen deprived of liberty. Whether the Executive likes it or not, the Constitution still applies to him.”
With arguments on the case expected next month, the brief’s signatories say the stakes are extraordinarily high.
“I’ve urged judges in more than a dozen countries with repressive regimes to stand up to their governments and insist that detainees are entitled to hearings and legal representation,” said Mr. Greathead, the internationally known human-rights attorney. “I never thought I would see the day that I would be making these same arguments to my own government.
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