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TERENCE SMITH: The 4th U.S. Circuit Court of Appeals in Richmond heard arguments today in the case of Jose Padilla. Padilla, an American, has been accused of working with al-Qaida to carry out a terrorist plot in the United States. He was arrested in 2002, but never formally charged. Instead, he has been held as an “enemy combatant,” a status his attorneys say violates his civil rights as a citizen.
For more on this case and today’s arguments, I’m joined by Ari Shapiro, who was in the courtroom for National Public Radio. Ari, welcome. To remind people, Padilla — and that’s the way his family likes to have it pronounced –
ARI SHAPIRO: That’s right.
TERENCE SMITH: Not Padilla, is the person whose arrest was announced in rather dramatic fashion by then Attorney General Ashcroft in 2002 he was in Moscow, a live hook-up and the first accusation was that he was going to set off a dirty bomb somewhere in the United States.
ARI SHAPIRO: Exactly. And later it came out that perhaps he was, in addition, planning to detonate bombs made from natural gas in apartment buildings and carry out further attacks that way.
TERENCE SMITH: Okay. So now it reaches the arguments today. Tell me — tell us what happened in the courtroom today.
ARI SHAPIRO: Solicitor General Paul Clement spoke on behalf of the government. He told the government’s story of Jose Padilla, which they’ve not been forced to prove in court yet, but he said they were perfectly prepared to prove it in court if asked to do so.
He portrayed him as somebody who trained with al-Qaida leaders in Afghanistan and Pakistan, then traveled to the U.S. with the explicit intent of carrying out attacks against Americans. And he said it would be nonsensical to argue that the president had less power to detain enemies as they approached their targets coming to the United States.
He said the United States is part of the battlefield in the war on terrorism, and so regardless of where Padilla was arrested — the U.S. or overseas — he said this is a battlefield arrest and it was perfectly legitimate to categorize him as an enemy combatant.
TERENCE SMITH: He was drawing something of a parallel to the other case that has been in the news that of –
ARI SHAPIRO: Yasser Hamdi.
TERENCE SMITH: Yasser Hamdi who was arrested outside the United States, another U.S. ctizen.
ARI SHAPIRO: That’s right.
TERENCE SMITH: But his status as an enemy combatant was upheld by the Supreme Court.
ARI SHAPIRO: There were many parallels between Padilla and Hamdi, and that was discussed quite a bit today in court. Both were U.S. ctizens as you say. Both were declared as enemy combatants. Both cases were championed by civil liberties groups as a violation of fundamental constitutional rights.
But, as you mentioned, the Supreme Court said that Hamdi could legally be classified as an enemy combatant. So the big difference in the argument here was whereas Padilla was arrested in the United States, Hamdi was arrested overseas, and a lot of the discussion involved around what difference it made where someone was arrested.
TERENCE SMITH: Okay. Now, what was the fundamental argument put forward by Padilla’s attorneys?
ARI SHAPIRO: Padilla’s attorneys stood before the court and said I may be the first criminal defense attorney ever to stand here and say indict my client. He said, arrest my client. Bring him up on charges. Put him before a court or let him go.
They said we’re perfectly willing to argue this case in court but they said the courts have been open for the more than three years that their client has been in custody and that as a U.S. citizen who was arrested in the U.S., they said it’s appropriate for him to be brought to court and brought up on those charges.
TERENCE SMITH: And did they argue that there were wider implications for U.S. citizens generally?
ARI SHAPIRO: Absolutely. After the hearing, the lawyer spoke outside of the courtroom and they said if the government wins in this case, it would mean that the government could come in and arrest anyone anywhere in the United States in the middle of the night and that you would disappear without access to a lawyer or being brought up on criminal charges. Now whether that’s true is debatable but that was the case of Padilla’s lawyers.
TERENCE SMITH: And did the government address that subject or that issue? Did they demur and say that’s not so?
ARI SHAPIRO: The government didn’t speak as extensively about the widespread implications that this case could have, if any. They did argue vehemently that the war on terror is unlike any previous war and as such the president needs the freedom to arrest U.S. citizens even if they are on U.S. soil planning to carry out attacks against Americans.
TERENCE SMITH: And I guess the fundamental concept was this notion that the war — that the United States is part of the battlefield.
ARI SHAPIRO: Exactly. The government lawyers said 9/11 proved that. The attacks in London proved that the battlefield is not limited to Afghanistan, Pakistan, but Padilla’s lawyers retorted that the battlefield has been defined as a place where there is no other available court for people to be brought up on charges, and as they said in the U.S. the courts have been open for business for the last three years.
TERENCE SMITH: Could you tell anything from either questions or comments of the judges — it was a three-judge panel –
ARI SHAPIRO: That’s right.
TERENCE SMITH: As to what their thinking was?
ARI SHAPIRO: Two of the judges took very strong overt sides. One of the judges was nearly silent. One of the judges was Michael Luttig, who has been subject to speculation as a possible Supreme Court nominee. And he almost made the government’s case for them, saying at one point if you just forcefully and vehemently said that the U.S. is a battlefield in the war on terror, end of story, you could win this case easily.
At another point one of the other judges seemed to make the case on the behalf of Padilla’s lawyers. The third judge was nearly silent so it’s difficult to know how this is going to turn out.
TERENCE SMITH: And what’s the expected deliberation period here? When might we see a decision in this case?
ARI SHAPIRO: It could take a period of weeks. Regardless of how it turns out, more or less everyone expects it will reach the Supreme Court which will be the second time that it’s done so.
The first time it reached the Supreme Court, the Justices, rather than deciding the subject matter of the case, said that it came from a wrong part of the country. They sent it back to South Carolina, where a federal judge ruled that the government had to either charge Padilla or let him go and the hearings — the hearing today was the government’s appeal to that ruling.
TERENCE SMITH: Right. In fact he said, that judge said 45 days, indict him or let him go?
ARI SHAPIRO: Exactly. So the government is hoping to have that overturned by the 4th Circuit Court of Appeals, which has a reputation as being a conservative court.
TERENCE SMITH: Right. And finally, the detainee, Mr. Padilla was not there today. He’s being held.
ARI SHAPIRO: That’s right. He’s being held in a Naval brig in South Carolina. His lawyers said they have had access to him, which is unusual for someone declared to be an enemy combatant. Nothing in this case was about whether he is guilty of a crime or not. It was all about whether he can be declared an enemy combatant and held without being charged.
TERENCE SMITH: Ari Shapiro, thanks very much for filling us in.
ARI SHAPIRO: My pleasure.