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Prominent Legal Experts Attack Bush on Jose Padilla

By Jeralyn, Section Terror Detainees
Posted on Thu Aug 07, 2003 at 11:14:36 PM EST
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Greg Sargent of The New York Observer reports on the most recent brief filed on behalf of Jose Padilla in the Second Circuit Court of Appeals:

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.

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.

The brief is unusual in that it includes many prominent Republicans among its authors:

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 article nicely details the growing alarm in the legal community, left, right and center, over arresting an American citizen, holding him incommunicado in a military brig for well over a year, without filing criminal charges and without providing him access to his lawyer. We're looking forward to reading the entire brief. Here are some more of the arguments:

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."

he 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."

The Second Circuit hears oral argument in the case next month.

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