Edition: U.S. / Global


Published: November 3, 2002

The government has strongly defended the legality of President Bush's designation of Jose Padilla, the man accused of plotting to explode a radioactive bomb in the United States, as an enemy combatant, arguing that the designation is not subject to close court scrutiny.

At most, the government said in a court filing Friday, the decision may be reviewed only to determine whether the president had 'some factual basis' for his action.

The government's arguments were made to Judge Michael B. Mukasey of U.S. District Court in Manhattan, who is considering a habeas corpus petition that seeks to test the legality of Mr. Padilla's detention.

The judge has not said when he will rule. Usually, in considering habeas petitions, judges have wide latitude in reviewing the underlying facts and procedures that led to a person's being jailed.

Mr. Padilla, an American who is also known as Abdullah al-Muhajir, was first detained last May in Chicago as a material witness in the terrorism investigation. In June, he was declared an enemy combatant by President Bush, and moved into military custody. Since then, he has been held, without access to a lawyer, in a Navy brig in South Carolina.

Judge Mukasey had asked for further submissions on whether he should consider a classified document that is said to detail the evidence against Mr. Padilla, but which the government has refused to show to the defense.

The defense lawyers say he should not rely on it if they cannot also see it. But the government says that the judge may review the document.

'This case is not an ordinary habeas case, and the general rules regarding factual determinations in ordinary habeas proceedings have no bearing here,' the government said.

It also said Judge Mukasey should not undertake 'the sort of unprecedented and constitutionally problematic proceeding' that the government contends Mr. Padilla's lawyers are seeking. Such an approach could open the door to other enemy combatants seeking judicial review of 'the correctness of the president's determination to detain them,' the government said.

In a separate filing, Mr. Padilla's lawyers, Donna R. Newman and Andrew G. Patel, likened his detention to 'the selective implementing of martial law.'

They also challenged the government's reasons for denying him a lawyer. Among other things, the government has argued that a lawyer might be unwittingly used as a conduit to pass messages to members of Al Qaeda.

But Mr. Padilla's lawyers argued that when he was first arrested last spring, Mr. Padilla had a lawyer for several weeks and did not seek to use her to pass messages to outsiders.

He has been in solitary confinement for more than five months, they added.

'At this point,' they said, 'the only information that Padilla could possibly have to pass on to Al Qaeda is how to sleep with the lights on.'