Terror case focuses on president's wartime power

Supreme Court to hear matter of U.S. citizen held without charges


About 10 months after Jose Padilla disappeared into a naval brig in South Carolina, a Pentagon official appeared at his mother's workplace in Florida with a greeting card. When Estela Ortega Lebron saw her son's familiar pinched handwriting, she trembled, knowing, before even reading the card, that it was for real, the first evidence of her son's existence since he was seized by the American military in June 2002.

"In the name of God the merciful the mercy giver," Padilla wrote, "I have been allowed to write you a card and just letting you know I'm doing fine and in good health. Do not believe what is being said about me in the news it is untrue and I pray that we can have a reunion."

That card was the sum and substance of Padilla's communication with the outside world for about 21 months. Brooklyn-born and Chicago-bred, a Muslim convert of Puerto Rican descent, Padilla, 33, was first arrested at O'Hare International Airport in May 2002. A month later, President Bush took the extraordinary step of declaring him an "enemy combatant," and the military placed Padilla, whom the government accused of plotting a radiological "dirty bomb" attack, in solitary confinement.

Last month, more than a year after a federal judge ordered the government to permit Padilla to see his lawyers, the government relented.

Padilla's detention confounds traditional notions of the way justice works in America. His case is shrouded in secrecy. No charges have been filed against him. And the government has offered just a hint of any evidence it possesses, asking the courts to defer to its judgment that, as Bush proclaimed, "this guy Padilla's a bad guy."

`Give me proof'

In Plantation, Fla., Padilla's mother, a condo owner, churchgoer and sales consultant for a human resources company, is as baffled as she is distressed. "Why are they doing this to an American?" she asked. "If we go to all these other countries to promote democracy - hello? - why can't we practice it at home? I'm like, `Give me proof.'"

The Bush administration says that the norms of criminal justice do not apply here, that the government has moved from a peacetime to a wartime footing.

Padilla vs. Rumsfeld, which goes before the Supreme Court on Wednesday, raises fundamental questions about presidential power and the checks and balances on that power during the open-ended campaign against terrorism. Lawyers on both sides agree that this is one of the most important cases of its kind in at least 50 years.

On June 10, 2002, Attorney General John Ashcroft announced Padilla's capture, saying that it had disrupted an "unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb," an attack with the potential to cause "mass death and injury."

Later, other officials emphasized that the "unfolding terrorist plot" had not progressed beyond "loose talk," as Paul D. Wolfowitz, the deputy secretary of Defense, put it.

To date, the government has elaborated little on its initial allegations about Padilla. It has asked the public and the courts to accept on the basis of its assertions - what Padilla's lawyer Donna R. Newman calls the "because-we-say-so doctrine."

High security

After his arrest in Chicago, Padilla was transferred to New York and imprisoned on a high-security floor, 10 South, at the Metropolitan Correction Center in Lower Manhattan.

"When I first met him, he was brought out in a `three-piece suit' - shackles, leg irons and a metal belt," Newman said. "I was handed an affidavit alleging that he was involved in a plot, according to informants, and saying that the informants were unreliable."

As Newman recalls, she raised her eyebrows when she read the affidavit. So, too, did Dale Watson, who was then the FBI's executive assistant director for counterterrorism, when he read Padilla's complete file.

"My recollection was this was a rather weak case," said Watson, who retired from the FBI later that year.

On June 10, two days before a hearing in which Newman was going to challenge Padilla's continued detention, she got a call on her car phone from an assistant U.S. attorney. "He said, `Donna, the military has taken your client,'" she said. "I thought it was a joke."

It wasn't.

"The president's response from 9/11 forward was to use every power and means at his disposal to try to prevent another attack," said Brad Berenson, a former associate White House counsel. The administration believed that dealing with the threat of terrorism in the context of war was appropriate and "forward leaning," he said.

Padilla certainly could have been charged with "a variety of offenses," based on the same facts that the president relied on to declare him an enemy combatant, in the opinion of Janet Reno, the former attorney general, who, with other law enforcement officials, filed a friend-of-the-court brief on behalf of Padilla.

But bringing criminal charges would have been difficult. As Alberto R. Gonzales, counsel to the president, explained in February, "We could have abundant information that an individual has committed a crime ... but the information may come from an extremely sensitive and valuable intelligence source. To use that information in a criminal prosecution would mean compromising that intelligence source and potentially putting more American lives at risk."

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