This item is available on the Militant Islam Monitor website, at http://www.militantislammonitor.org/article/id/2685
January 27, 2007
By Beila Rabinowitz
January 27, 2007 - San Francisco, CA - PipeLineNews.org - In early January, the New York Times published information - gleaned from FISA court documents - revealing the partial content of wiretapped phone conversations of dirty bomber wannabe Jose Padilla which prosecutors are now claiming will influence jurors and jeopardize their case.
Michael Caruso one of Padilla's four court appointed lawyers, admitted the leak while making the ridiculous assertion to U.S. District Court Judge Marcia Cook that, "it was a simple misunderstanding, an honest mistake, and it has been rectified. Your honor can rest assured that this matter is an an end. There have been no further disclosures."
Mr. Caruso did not explain how a "simple misunderstanding" could account for the intentional routing of national security documents to New York Times' reporter Deborah Sontag.
The leaker was identified in a sealed filing. Padilla's three other lawyers are Anthony Natale, Orlando DeCampo and the New York based Andrew Patel.
U.S. prosecutors called for a formal investigation, demanding that the Padilla's defense team be put under oath but the judge refused to impose any penalty, instead ordering the lawyers to sign essentially meaningless documents indicated they would from this point forward, follow her already exiting order barring disclosure of certain evidence.
The documents were not classified but had been subject to a disclosure ban. Cooke's statement affirmed that she would henceforth consider holding anyone in contempt who receives such material.
U.S. Attorney Brian Frazier termed the action an "outrageous" characterizing it as an attempt to influence public perceptions of the case, including those of potential jurors. Frazier added rhetorically "what was the point? It was clearly calculated to influence the jury of public opinion and try this case there…It was a deliberate violation" [source http://www.sun-sentinel.com/news/local/southflorida/sfl-0124padilla,0,397044.story?coll=sfla-home-headlines
The judge warned that "the lash is about to fall on all…We're going to have a trial…on the evidence and not on anything else."
The transcripts were used as the basis for a front page article by Times' National Desk reporter, Deborah Sontag in the January 4th edition of the newspaper, the purpose of which was to discredit the government's case, "In Padilla Wiretaps Murky view of Jihad Case." Sontag claimed that Padilla made "no mention of violent plots" in the tape in an attempt to prove his innocence but soft-sold the fact that the same documents clearly show Padilla cautioning co-defendant Adham Hassoun about speaking on the phone, fearing it was tapped.
Sontag's theory is also diminished given Padilla's involvement in the dirty bomb plot has also been corroborated by terror suspect Abu Zubaydah while under interrogation [which was deemed inadmissable], a fact she seemingly gloats over adding, "strict federal rules" make for a "far more circumscribed case against Padilla in court effectively demoting him from Al Qaeda's dirty bomber to foot soldier."
On January 6th a New York Times editorial mocks the government's case against Padilla "The Imperial Presidency 2.0" which began "The New York Times reported last week about the sorry excuse for a criminal case that the administration whipped up against Jose Padilla." [source http://www.iht.com/articles/2007/01/07/opinion/edbush.php]
Last June the administration had requested executive editor Bill Keller not to publish an expose about a terrorist financing surveillance program on the grounds that it would alert those who were being monitored. Keller rejected the government's request and outed the program.
The resulting security breach was so serious that President Bush felt compelled to address it directly calling the exposure of the program, "a a disgraceful act that does harm to the nation," adding:
"We're at war with a bunch of people who want to hurt the United States of America, and for people to leak that program, and for a newspaper to publish it, does great harm to the United States of America"
Congressman Peter King [R-NY] suggested that the Justice Department prosecute the Times for their "treasonous action." Treasury Secretary John Snow blasted editor Bill Keller for his "breathtaking arrogance."
White House spokesman Tony Snow pointed out that the Times action could have lethal consequences, "The New York Times and other news organizations ought to think long and hard about whether a public's right to know, in some cases, might overwrite somebody's right to live."
The Times' selective use of the wiretap transcript to destroy the governments case against Padilla is just another piece of evidence that demonstrates their relentless campaign to undermine national security, at the same time promoting the Islamist canard that it is the U.S. government who are the aggressors and the jihadists who are the victims in this matter.
The actions of Deborah Sontag, her employer the New York Times and Padilla's lawyers will be duly noted by both the terrorists and the legal Islamists, who will be emboldened as a result.
MIM: In 2005 some of Padilla's lawyers spoke to Amy Goodman on the Democracy Now show - an anti American propaganda program. Not coincidentally Goodman's husband Bill, who runs the Center for Contitutional Democracy submitted an amicus brief to the court (see below) which was an attempt to get Padilla released within 30 days. Dirty bomber wannabe Padilla had been identified by Al Qaeda leader Abu Zubaydeh as being part of their operations.
The Justice Department announced Tuesday criminal charges have been filed against Jose Padilla - the U.S. citizen who had been held for over three years in solitary confinement on a military brig in South Carolina. We speak with one of Padilla's attorneys and the legal director of the Center for Constitutional Rights. [includes rush transcript]
The Justice Department announced Tuesday criminal charges have been filed against Jose Padilla - the U.S. citizen who had been held for over three years in solitary confinement on a military brig in South Carolina.
Padilla was first detained in 2002 at Chicago's O'Hare Airport after he returned from a trip to Pakistan. At the time Attorney General John Ashcroft warned the government had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb." President Bush declared he was an enemy combatant who could be jailed in solitary confinement indefinitely without charges - even though he was a U.S. citizen.
The Bush administration didn't even let Padilla meet with an attorney for two years.
On Tuesday Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes.
There is no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There is also no mention that Padilla ever planned to stage any attacks inside the country. And there is no direct mention of Al Qaeda. Instead the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but the indictment offers no evidence he ever engaged in terrorist activity.
This is Padilla's attorney Donna Newman.
This transcript is available free of charge. However, donations help us provide closed captioning for the deaf and hard of hearing on our TV broadcast. Thank you for your generous contribution.
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AMY GOODMAN: On Tuesday, Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes.
ALBERTO GONZALES: Earlier today, a superseding indictment was unsealed in federal court in the Southern District of Florida charging Jose Padilla with providing and conspiring to provide material support to terrorists and conspiring to murder individuals who are overseas. The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in violent jihad, a shorthand term to describe a radical Islamic fundamentalist ideology, that advocates using physical force and violence to oppose governments, institutions and individuals who do not share their view of Islam.
AMY GOODMAN: That was Attorney General Alberto Gonzales. But the indictment raises questions over why the Bush administration held Padilla as an enemy combatant for over three years. There's no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There's also no mention that Padilla ever planned to stage any attacks inside the country. And there's no direct mention of al-Qaeda. Instead, the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan, but the indictment offers no evidence he ever engaged in terrorist activity. This is his Padilla's attorney, Donna Newman.
DONNA NEWMAN: We are fighting, in our cert petition, the government's position that they have unfettered discretion and authority to arrest any American citizen and label them an enemy combatant and detain them indefinitely until, at their discretion, they decide to do something else. We were anxious for an indictment, because we knew that we could demonstrate that the government has exaggerated Mr. Padilla's involvement in any activity, that he was innocent of the charges.
AMY GOODMAN: That was Donna Newman, Jose Padilla's attorney. The Washington Post reports Padilla's indictment came days before the Bush administration was due to respond to his appeal to the Supreme Court over his lengthy detention. Legal experts have said the government is trying to avoid another potentially losing confrontation in the high court over its detention policies. Attorneys with the Justice Department have already filed paperwork arguing Padilla's Supreme Court challenge is now moot.
Today we're joined in our New York studio by one of Jose Padilla's attorneys, Andrew Patel, as well as Bill Goodman, Legal Director of the Center for Constitutional Rights. And we welcome you both to Democracy Now! Andrew Patel, let's begin with you. What happens to the Supreme Court challenge over Padilla's detention?
ANDREW PATEL: The cert process continues. The government will file their -- our cert petition has been in. Their reply brief was due next week. They will get a short extension to file a brief. We anticipate that they will raise the issue of mootness, and we will reply that it is not moot, and we will ask the court to consider this very important issue. Not only is it not moot as to Mr. Padilla, for example, suppose he was acquitted of this charge or the case was somehow dismissed, and the government decided that, well, we don't want him out and they just declare him to be an enemy combatant and send him back to the brig again. Until the Supreme Court rules that the President does not have that power, that's an authority, as Justice Jackson said in his dissent to Korematsu, that lies around like a loaded gun ready to be used or abused at any time.
AMY GOODMAN: Korematsu, being the Japanese American detained during World War II.
ANDREW PATEL: That's correct.
AMY GOODMAN: Can you outline what exactly this indictment says? It seems more to talk about the other men than it does your client. And his name is pronounced Jose Padilla?
ANDREW PATEL: That's what his mother tells me.
AMY GOODMAN: How much have you seen -- have you seen Jose Padilla?
ANDREW PATEL: Since we first got access to him, we have been able to see him pretty much as we needed to. Of course, we are in New York; he is in South Carolina, so there have been difficulties, but I have been able to see him in five or six weeks --
AMY GOODMAN: And when did you get access to him?
ANDREW PATEL: The day the government's reply brief was due in the first cert round.
AMY GOODMAN: How long was that after his detention?
ANDREW PATEL: About two years.
AMY GOODMAN: He didn't have attorney access for two years?
ANDREW PATEL: That's correct. When he was first brought to New York as a material witness, classic arrest based on a warrant issued by a judge, Donna Newman was assigned to represent him. When the President signed the order on June 9, sending him to the military custody, we were denied access. In fact, we couldn't even write to him. In the cert process, where the government asked the court to review the Second Circuit decision saying the President had no such authority, we asked the court to take the due process issue, including whether we could see Mr. Padilla or, more importantly, whether Mr. Padilla could see us.
Their reply was due on a given date at 3:00 in the afternoon, according to the court's schedule. At 1:00, I received a call from the military saying that we would be getting access. At 2:00, the government had a press conference saying they were giving us access, and at 3:00, they filed a brief saying to the court that the court didn't need to consider the due process issue, it was moot, and they actually cited to the web link to their press conference of an hour before.
AMY GOODMAN: Now, the indictment. What does it say?
ANDREW PATEL: The indictment basically charges material support and conspiring to support terrorism overseas. There's really nothing --
AMY GOODMAN: Terrorism where? In Padilla's case.
ANDREW PATEL: Overseas, not in the United States. And that is just a remarkable shift in the government's position. We have seen them shift positions about what he is alleged to have done before, but this is a rather remarkable departure.
AMY GOODMAN: And the whole issue of a dirty bomb, all of the things that the former Attorney General had laid out?
ANDREW PATEL: I believe Mr. Gonzales said that that was now irrelevant.
AMY GOODMAN: What has Padilla's detention been like on this brig?
ANDREW PATEL: It is -- to talk about solitary confinement, it is -- only begins -- it's the tip of the iceberg. He has been detained in a modern facility in a unit that has ten cells, five on each floor, each tier. The other nine cells in the unit that he is on are empty. He is entirely alone. He hears no sounds except the ventilation. He doesn't even have -- except when food is brought to him, he has no human contact. He has primarily been monitored by cameras and electronically. Even when he is allowed out for recreation, he is in, essentially, a concrete box alone. So his contacts with other people of any kind has been limited to about 15 minutes a day.
AMY GOODMAN: Now that he has moved from military detention and now will be tried in a civilian court, has what he said in military interrogation, will that be usable?
ANDREW PATEL: When Mr. Comey, Jim Comey, was the Deputy Attorney General, he acknowledged that any statements Mr. Padilla made while he was in custody were obtained in violation of his rights to counsel and that they could not be used in court.
AMY GOODMAN: We're talking to Andrew Patel, one of Jose Padilla's attorneys. Bill Goodman is with us also, Legal Director for the Center for Constitutional Rights. Can you talk about the broader significance of this? Were you surprised by Alberto Gonzales's news conference yesterday, the announcement of the transfer from military to civilian courts?
BILL GOODMAN: Well, I was stunned. It was -- here's a situation where, really, an opinion written by Judge Luttig of the Fourth Circuit, who by the way was on the short list for a United States Supreme Court appointment, is really a paradigm. It's a model for the destruction of the institution of the separation of powers in the United States and to give the President wide broad powers to detain anyone he wants without any process whatsoever. This opinion is what is at stake. This is what is on appeal to the United States Supreme Court.
And I have no doubt that now that they have charged Mr. Padilla with these crimes, this stale conspiracy, really, in my opinion, they're going to move to dismiss the cert petition on the grounds that it's moot. In my judgment, that borders on abuse of process by the Justice Department. What they are doing is manipulating the process in order to sustain an opinion that says the President can virtually shred the Constitution and manipulating the legal process in so doing and saying someone who had been held really in violation of constitutional principles, because he was such a danger to the United States, because of these allegations, now they're irrelevant. It's shocking. It's an outrage.
AMY GOODMAN: What does it mean for someone else, how they get categorized as an enemy combatant? And then, does the whole process start again, because the challenging of the detention as enemy combatant will no longer be in court?
BILL GOODMAN: What it means is that someone to whom this happens -- someone else to whom this happens will perhaps at some point be allowed access to an attorney, will raise the issue in the same way that Andy Patel has raised this on behalf of his client and will be faced with the precedent of Judge Luttig's opinion in the Fourth Circuit as a huge obstacle to obtaining any due process whatsoever, and will then be forced to take it to the United States Supreme Court themselves someday, if the court wants to accept the case. I really think the Justice Department was very fearful that in this instance, the court was going to grant cert and undermine the position of the Fourth Circuit opinion.
AMY GOODMAN: I want to play an excerpt from the Supreme Court arguments in the case of Rumsfeld v. Padilla from April 2004. In the proceeding, the Supreme Court justice, Ruth Bader Ginsburg, questioned U.S. Deputy Solicitor General Paul Clement over the extent of presidential power during wartime, and how it related to the Padilla case, as well as to the use of torture.
JUSTICE RUTH BADER GINSBURG: If the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment – that's the resolution you gave us that Congress passed – and it leaves it up to the executive, unchecked by the judiciary, so what is it that would be a check against torture?
PAUL CLEMENT: Well, first of all, there are treaty obligations, but the primary check is that, just as in every other war, if a U.S. military person commits as war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime, and we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons --
JUSTICE RUTH BADER GINSBURG: Suppose the executive says, ‘Mild torture, we think, will help get this information.' It's not a soldier who does something against the Code of Military Justice, but it's an executive command. Some systems do that to get information.
PAUL CLEMENT: Well, our executive doesn't, and I think, I mean --
JUSTICE RUTH BADER GINSBURG: But what's constraining, and that's the point, is it just up to the goodwill of the executive? Is there any judicial check?
PAUL CLEMENT: Well, this is a situation where there is jurisdiction in the habeas courts. So, if necessary, they remain open, but I think it's very important. I mean, the court in Ludecke against Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority. You have to recognize that in situations where there is a war -- where the government is on a war footing, that you have to trust the executive.
AMY GOODMAN: Paul Clement, now Solicitor General, arguing before the U.S. Supreme Court. Andrew Patel, you were at the table representing Jose Padilla?
ANDREW PATEL: I was. I did not argue. The case was argued by Professor Jenny Martinez, who has been part of our defense team since the Second Circuit proceedings, but I was there.
AMY GOODMAN: That night -- this was April 2004?
ANDREW PATEL: Correct.
AMY GOODMAN: That night?
ANDREW PATEL: The Abu Ghraib story broke. I have to tell you, I have no reason to believe and every reason to believe that Mr. Clement, when he made those statements, knew nothing about what was about to hit the news, but it's quite a --
AMY GOODMAN: Bill Goodman, the significance of this questioning of Ruth Bader Ginsburg?
BILL GOODMAN: Justice Ginsburg did an excellent job of exposing the dangers of unfettered, unsupervised executive power, and, of course, those dangers being ultimately torture and murder. And the fact that there are people within the administration willing to essentially be apologists for this kind of thing is very disturbing. Mr. Clement, as Andy Patel says, Mr. Clement may well not have known what was going on at Abu Ghraib, but still, the principle remains, and the principle is that without any judicial oversight or judicial check, this is the kind of abuse that clearly can happen, and it's so foreseeable, and obviously Justice Ginsburg recognized it.
AMY GOODMAN: We want to thank you both for being with us. I just want to wrap up with Andrew Patel, last comment, and what's the schedule of this court trial for your client, Jose Padilla?
ANDREW PATEL: First, we have to get him to Florida, get him arraigned. And I have been told that this trial is scheduled for September of 2006.
AMY GOODMAN: Is there any significance about it being a Florida grand jury, a federal grand jury there?
ANDREW PATEL: We just asked that he be brought out from behind the looking glass and be brought back into the criminal process.
AMY GOODMAN: Andrew Patel, one of Jose Padilla's attorneys; Bill Goodman, Legal Director for the Center for Constitutional Rights, thank you so much.
United States Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303-2289 (404) 335-6100 06-15845-W USA v. Adham Amin Hassoun Docket #: 06-15845-W Short Style: USA v. Adham Amin Hassoun Docket Date: 11/06/2006 Lead Case: Agency: Nature of Suit: Misc. Type: Clerk: Geddis, Valerie Clerk Phone: (404) 335-6143 District Information Docket #: 04-60001-CR-MGC Judge: Marcia G. Cooke Dkt Date: 01/08/2004 District: Florida-Southern NOA Date: 10/16/2006 Office: SFL-Fort Lauderdale Secondary Case Information Docket #: Judge: Dkt Date: / / Case Relationships Docket # Short Style Relation Status Pending Motions No Pending Motions -------------------------------------------------------------------------------- United States Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303-2289 (404) 335-6100 06-15845-W USA v. Adham Amin Hassoun UNITED STATES OF AMERICA, Plaintiff-Appellant, versus ADHAM AMIN HASSOUN, KIFAH WAEL JAYYOUS, a.k.a. Abu Mohamed, JOSE PADILLA, a.k.a. Ibrahim, a.k.a. Abu Abdullah Al Mujahir, a.k.a. Abu Abu Abdullah the Puerto Rican, Defendants-Appellees. -------------------------------------------------------------------------------- United States Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303-2289 (404) 335-6100 06-15845-W USA v. Adham Amin Hassoun Appellant Appellant Attorney United States of America Address Not On File E-Brief Tendered: Appellant filed on 11.20.2006 Appellant Brief Filed filed on 11.21.2006 Record Excerpts filed on 11.21.2006 Fees: Not Required on 10.16.2006 Anne R. Schultz U.S. Attorney's Office 99 NE 4TH ST MIAMI, FL 33132-2131 (305) 961-9117 Fax: (305) 536-7214 Anne.Schultz@usdoj.gov No Briefing Information Found. Lisa T. Rubio 99 NE 4TH ST STE 514 MIAMI, FL 33132-2131 (305) 961-9114 Fax: (305) 536-7214 Lisa.Rubio@usdoj.gov No Briefing Information Found. Appellee Appellee Attorney Adham Amin Hassoun (72433-004) PO BOX 19120 MIAMI, FL 33101-9120 Appointed by District Cout Kenneth M. Swartz 100 BISCAYNE BLVD STE 2100 MIAMI, FL 33132-2307 (305) 579-9090 email@example.com No Briefing Information Found. Kifah Wael Jayyous Address Not On File Appointed by District Cout William W. Swor, Esq. 645 GRISWOLD ST DETROIT, MI 48226-4105 (313) 967-0200 Fax: (313) 961-4926 firstname.lastname@example.org No Briefing Information Found. Jose Padilla Address Not On File Federal Public Defender Michael T. Caruso Federal Public Defender 150 W FLAGLER ST STE 1700 MIAMI, FL 33130-1555 (305) 530-7000 Fax: (305) 536-4559 Michael_Caruso@fd.org No Briefing Information Found. Appointed by District Court Andrew Patel, Esq. 111 BROADWAY RM 1305 NEW YORK, NY 10006-1911 (212) 349-0230 Fax: (212) 346-4665 email@example.com No Briefing Information Found. Appointed by District Court Jeanne Baker Jeanne Baker, P.A. 2937 SW 27TH AVE STE 202 MIAMI, FL 33133-3772 (305) 443-1600 Fax: (313) 961-4926 firstname.lastname@example.org No Briefing Information Found. Initial Service Russell R. Killinger 99 NE 4TH ST MIAMI, FL 33132-2131 Brian K. Frazier 99 NE 4TH ST MIAMI, FL 33132-2131 (305) 961-9000 Stephanie K. Pell 99 NE 4TH ST MIAMI, FL 33132-2131 305/961-5000 R. Alexander Acosta 99 NE 4TH ST STE 512 MIAMI, FL 33132-2131 (305) 961-9117 Fax: (305) 536-7214 -------------------------------------------------------------------------------- United States Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303-2289 (404) 335-6100 06-15845-W USA v. Adham Amin Hassoun File Date Entry Party Pending 10/16/2006 Fee Status: Not Required (10/16/06) for United States of America United States of America No 11/06/2006 Transcript Order Form (All Necessary Transcripts on File): United States of America No 11/07/2006 Appearance Form Not Needed for Court Appointment by District Court for Jayyous, Kifah Wael William W. Swor, Esq. No 11/07/2006 Appearance Form Not Needed for Court Appointment by District Court for Padilla, Jose Andrew Patel, Esq. No 11/08/2006 Appearance Form Not Needed for Court Appointment Federal Defender on 10/16/06 for Padilla, Jose Michael T. Caruso No 11/08/2006 Appearance Form Not Needed for Court Appointment by District Court on 10/16/06 for Hassoun, Adham Amin Jeanne Baker No 11/08/2006 Briefing Notice Issued No 11/08/2006 DKT7CIV (Docketing Notice confirming brief due date) issued. To:Brian K. Frazier; To:Russell R. Killinger; To:Stephanie K. Pell; c:Andrew Patel, Esq.; c:Anne R. Schultz; c:Clarence Maddox; c:Jeanne Baker; c:Kenneth M. Swartz; c:Michael T. Caruso; c:R. A+ No 11/09/2006 CJA-20 Voucher Issued to Andrew Patel (Jose Padilla) No 11/09/2006 CJA-20 Voucher Issued to Jeanne Baker (Adham Amin Hassoun) No 11/09/2006 CJA-20 Voucher Issued to William W. Swor (Kifah Wael Jayyous) No 11/09/2006 CJA1 (CJA appointment of counsel letter) issued. To:Andrew Patel, Esq.; c:Anne R. Schultz; c:Brian K. Frazier; c:Clarence Maddox; c:Jeanne Baker; c:Kenneth M. Swartz; c:Michael T. Caruso; c:R. Alexander Acosta; c:Russell R. Killinger; c:Stephanie K. Pel+ No 11/09/2006 CJA1 (CJA appointment of counsel letter) issued. To:Jeanne Baker; c:Andrew Patel, Esq.; c:Anne R. Schultz; c:Brian K. Frazier; c:Clarence Maddox; c:Kenneth M. Swartz; c:Michael T. Caruso; c:R. Alexander Acosta; c:Russell R. Killinger; c:Stephanie K. Pel+ No 11/09/2006 CJA1 (CJA appointment of counsel letter) issued. To:William W. Swor, Esq.; c:Andrew Patel, Esq.; c:Anne R. Schultz; c:Brian K. Frazier; c:Clarence Maddox; c:Jeanne Baker; c:Kenneth M. Swartz; c:Michael T. Caruso; c:R. Alexander Acosta; c:Russell R. Kill+ No 11/13/2006 Appearance Form Submitted. Lisa T. Rubio No 11/13/2006 Motion to Expedite: (Atty: Lisa T. Rubio) United States of America No 11/14/2006 Appearance Form Submitted. Kenneth M. Swartz No 11/14/2006 APLT's motion to expdite is GRANTED. APLT's brief and record excerpts will be due on 11/20/06. APLES' briefs will be due on 12/11/06. APLT's reply brief will be due on 12/18/06. USDC is directed to transmit the ROA to this Court after 12/11/06. (JFD No 11/14/2006 MOT2 (Notice of court action) issued. To:Clarence Maddox; c:Andrew Patel, Esq.; c:Jeanne Baker; c:Lisa T. Rubio; c:Marcia G. Cooke; c:Michael T. Caruso; c:William W. Swor, Esq. No 11/15/2006 CJA1A (CJA appointment of counsel letter) issued. To:Kenneth M. Swartz; c:Andrew Patel, Esq.; c:Clarence Maddox; c:Jeanne Baker; c:Lisa T. Rubio; c:Michael T. Caruso; c:William W. Swor, Esq. No 11/15/2006 JUR-1 (Letter enclosing jurisdictional question) issued. c:Andrew Patel, Esq.; c:Jeanne Baker; c:Kenneth M. Swartz; c:Lisa T. Rubio; c:Michael T. Caruso; c:William W. Swor, Esq. No 11/15/2006 Jurisdictional Questions Issued No 11/20/2006 E-Brief Tendered: Appellant by Lisa T. Rubio USA No *** 30pages *** 11/21/2006 CJA-20 Voucher Issued (Adham Amin Hassoun) No 11/21/2006 Appearance Form Submitted. Anne R. Schultz No 11/21/2006 CJA1A (CJA appointment of counsel letter) issued. To:Kenneth M. Swartz No 11/21/2006 Appellant Brief Filed: (Atty: Anne R. Schultz) United States of America No 11/21/2006 Record Excerpts: (Atty: Anne R. Schultz) United States of America No 01/10/2007 Oral Argument Scheduled: 01/10/07 No -------------------------------------------------------------------------------- PACER Service Center Transaction Receipt 11/27/2006 13:18:52 PACER Login: pi0356 Client Code: Description: docket sheet Case Number: 06-15845-W Billable Pages: 5 Cost: 0.40 -----------------------------------
MIM: The amicus briefs which were submitted by Bill Goodman whose wife Amy interviewed
Padilla's lawyers in 2005 in a program which included him.
Docket: Padilla v. Rumsfeld
|Opinions and Documents|
| Padilla v. Rumsfeld CCR Amicus Brief (PDF) 450KB|
Supreme Court Decision (PDF) 517 KB
District Court Decision (PDF) 121KB
Second Circuit-Amicus Brief (PDF) 5.6MB
Second Circuit-Amicus Brief Appendix (PDF) 1.3MB
2nd Circuit Decision (PDF) 156KB
2nd Circuit Dissent (PDF) 78KB
On Monday, April 12th, 2004 the Center for Constitutional Rights submitted an amicus brief to the Supreme Court in Rumsfeld v. Padilla, urging the court to affirm the opinion of the Court of Appeals for the Second Circuit, which declared unlawful the Bush administration's detention of U.S. citizen José Padilla, the alleged "dirty bomber." Padilla, arrested in the United States, has been held incommunicado since June 2002 as an "enemy combatant" and has been deprived of his right to meet with an attorney or to have his detention reviewed by a court. On June 28, 2004, the Supreme Court side-stepped the issue and ruled narrowly that the suit name the wrong respondent and must be re-filed in South Carolina where he is being held.
Description and Status
This might have been the lead case to test the Executive's contention that its exercise of authority in the name of counterterrorism is beyond the reach of the constitution and the courts. When the question at stake was whether there are any limits at all on the newly created power of the Executive to detain individuals indefinitely during the "war on terrorism." Because Padilla is an American citizen who was arrested in this country and not on the battlefield, the case presents the clearest picture of the government's extreme measures. Up to this point there has been no allegation that Padilla was fighting for the Taliban or was a member of Al Qaeda. Despite this, Padilla has been stripped of nearly all of his constitutional protections.
CCR Legal Director Jeff Fogel emphasized that nothing less than the basic rights of all citizens is at stake, "President Bush has effectively suspended the writ of habeas corpus. By keeping Mr. Padilla in absolute isolation, by preventing contact even with his attorneys, and by claiming that the attorneys have no right to act on Mr. Padilla's behalf, the administration is trying to establish that the courts have no authority to act and that the Executive cannot ever be held accountable for any detention or actions taken against Mr. Padilla or, for that matter, any other American citizen it declares to be an 'enemy combatant.' There is no possible legal interpretation of the constitution that would allow a U.S. citizen arrested in the United States to be deprived of the right to be represented by a lawyer and the right to challenge the arrest and detention in court."
On May 8, 2002, José Padilla, a United States citizen arrived in the United States via a regular scheduled commercial airliner. He was arrested under a material witness warrant issued by the grand jury sitting in New York. At that time, the court assigned counsel to represent him. On June 9, 2002, President Bush declared Padilla an "enemy combatant based on substantially the same facts presented to the court for the grand jury arrest warrant. Assistant Defense Secretary Paul Wolfowitz alleged that Padilla was suspected of planning to explode a radioactive device or a "dirty bomb" as part of a terrorist attack. Bush ordered Padilla's arrest and detention by the military. Padilla remains at the U S. Navy Consolidated Brig in South Carolina where he is held incommunicado and denied all access to counsel.
Padilla's attorneys filed a habeas corpus petition challenging Padilla's detention. The attorneys acted as Padilla's "next friend," because Padilla could not act on his own behalf or otherwise direct the attorneys because of his complete isolation.
The Bush administration's strategy of keeping Padilla isolated from any one who might help him mount a defense is readily apparent. In December 2002, U.S. District Judge Michael Mukasey, Chief Judge of the federal court in the Southern District of New York, ruled that although the president could hold those deemed enemy combatants until the end of the hostilities, Padilla did have the right to meet with counsel and offer evidence contesting the government's allegations. However, the government refused to comply with the decision and has claimed that allowing Padilla to meet with his attorneys would be too great a security risk. They have argued that his interrogation in custody without representation might yet yield valuable information.
On April 9, 2003, Judge Mukasey certified six questions to the Second Circuit Court of Appeals so that a decision on the key legal questions in the case could be made expeditiously. These were:
1. Is the Secretary of Defense, Donald Rumsfeld, a proper defendant in this case?
2. Does this court have personal jurisdiction over Secretary Rumsfeld?
3. Does the President have the authority to designate as an enemy combatant tan American citizen captured within the United States, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda?
4. What burden must the government meet to detain petitioner as an enemy combatant?
5. Does petitioner have the right to present facts in support of his habeas corpus petition?
6. Was it a proper exercise of this court's discretion and its authority under the All Writs Act to direct that petitioner be afforded access to counsel for the purpose of presenting facts in support of his petition?
On July 29, 2003 CCR filed an amicus brief with the Court of Appeals for the Second Circuit. The amicus brief was filed on behalf of CCR, Asian American Legal Defense and Education Fund, National Lawyers Guild, National Immigration Project, Guild Law Center, Center for Human Rights and Constitutional Law, Unitarian Universalist Service Committee, 130 legal scholars and several individuals.
On December 18, 2003 a three judge panel of the Second Circuit Court of Appeals ruled that the President had no authority under the Constitution to imprison an American citizen as an enemy combatant without any charge and without judicial review when he was arrested on U.S. soil, unarmed, and far from any field of combat. The court ordered Padilla to be released within 30 days. The government appealed the decision to the Supreme Court, which granted review and will hear the case on April 28, 2004.
The Center's amicus brief to the Supreme Court primarily focuses on the Non-Detention Act, 18 U.S.C. § 4001(a), a law designed to prevent recurrences of measures like the Japanese-American internments by mandating that no citizen may be detained except pursuant to an Act of Congress. Because § 4001(a) bars the executive from detaining citizens without authorization from Congress, even in wartime or periods of national crisis, the President's current detention of Padilla as an enemy combatant should be declared unlawful.
On June 28, 2004, the Supreme Court ruled narrowly that the proper respondent for the suit is the immediate custodian, in this case Commander Marr, the warden of the brig where he is being held and not Secretary Donald Rumsfeld. Therefore, the Court ruled, the habeas petition must be re-filed in South Carolina. The Court stated that it was important to prevent forum shopping.
Justice Stevens dissented, arguing that the custodian rule is already riddled with exceptions and should not have been applied in a case this important. He noted that case law is clear that the rule is not applied in "special circumstances," and that Padilla's attorney did not know where he had been taken when she filed the petition. The government's machinations placed her in a position where she had to act quickly and without full information in order to protect his rights. The Supreme Court has allowed this maneuvering by the government to delay, for at least another year, Padilla's chance to test the legality of his detention.
See also, the Supreme Court's decision in Hamdi v. Rumsfeld: http://www.ccr-ny.org/v2/legal/september_11th/sept11Article.asp?ObjID=SFG3oUP6Vx&Content=93
CCR submitted the brief on behalf of itself, the National Lawyers Guild and eight distinguished professors of constitutional law: Bruce Ackerman (Yale), Erwin Chemerinsky (Duke/USC), Thomas Grey (Stanford), Sylvia Law (NYU), Martha Minow (Harvard), Peter Shane (OSU), Geoff Stone (University of Chicago) and Peter L. Strauss (Columbia).
CCR Legal Team - Barbara Olshansky
This item is available on the Militant Islam Monitor website, at http://www.militantislammonitor.org/article/id/2685