Jose Padilla Charged

RAY SUAREZ:

Jose Padilla was dubbed "the dirty bomber" after his arrest in 2002. He was accused of plotting attacks on apartment buildings and hotels in the United States. Then Attorney General John Ashcroft made the announcement, accusing Padilla, an American citizen, of waging war against the U.S.

JOHN ASHCROFT:

We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.

RAY SUAREZ:

President Bush labeled Padilla an "enemy combatant", allowing the U.S. military to detain him indefinitely with limited access to attorneys. Padilla then sat in a Navy brig in South Carolina for more than three years without ever being formally charged with a crime, until yesterday, when Attorney General Alberto Gonzales announced the U.S. Government was indicting Padilla for supporting terror campaigns in Afghanistan and elsewhere between 1993 and 2001.

ALBERTO GONZALES:

The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in violent jihad.

RAY SUAREZ:

Gonzales would not explain to reporters why Padilla's alleged plans to attack the U.S. were not included in the indictment, or whether he's still considered an enemy combatant.

ALBERTO GONZALES:

Mr. Padilla's designation as an enemy combatant has no legal relevance whatsoever with respect to the charges that we're announcing this morning.

RAY SUAREZ:

The indictment of Jose Padilla comes just days before the Bush administration was due to respond to his appeal to the Supreme Court of his lengthy detention.

For more on the Padilla indictment and its larger impact on prosecuting terror suspects, we're joined by Brad Berenson. He was associate counsel to President Bush from 2001 to 2003, and helped shape administration policy for the litigation of detainees; he is now in private practice. And Jenny Martinez, a member of Jose Padilla's legal team, she argued his case before the Supreme Court in 2004, and is now a professor at Stanford Law School.

And, Professor Martinez, all along your side has said it wants the government to either indict Jose Padilla or release him. Isn't this progress of a kind?

JENNY MARTINEZ:

It's a tremendous victory for Mr. Padilla and for the Constitution. This is what we've been asking for, for the past three-and-a-half years, that the constitutional process of criminal charges be brought against him. So in that sense, it's a tremendous victory.

It doesn't mean the enemy combatant issue is over, and in some sense it's very disappointing because the government is trying to evade Supreme Court review. The Supreme Court could still hear the case.

RAY SUAREZ:

Brad Berenson, you heard that, trying evade Supreme Court review. Monday was a looming deadline for the administration to file its briefs as this case made its way to the Supreme Court. Why do you think they charged him now after the president had spent so much time insisting that he has the right to hold people like Jose Padilla indefinitely?

BRAD BERENSON:

Well, I think it's a simple situation of now having enough evidence that would be admissible in federal court under the normal standards to bring a criminal case against Mr. Padilla without implicating the kinds of sensitive sources and methods of intelligence that would turn a trial into a travesty.

In short, I think they've indicted him now, taken him out of the military system, and put him into the civilian justice system because they have a case that they believe can stand up in that system without unduly jeopardizing the national security interests of the United States.

RAY SUAREZ:

So you disagree with Professor Martinez this was an attempt to keep it from going before the court?

BRAD BERENSON:

Well, she's correct that this won't necessarily keep it from coming before the court. I mean, the administration is going to take the position that this moots the Supreme Court case and that the court should therefore not hear it, but Professor Martinez is quite correct that the mootness doctrine contains some escape valves that would allow the Supreme Court to review this case nonetheless.

So that can't have been the driving force behind this decision, although it may have been one among many factors.

RAY SUAREZ:

Well, Professor, you have called this a big victory, but what about Brad Berenson's point that given the kind of information that is necessary to bring a terror prosecution, there are probably things governments don't want to bring into open court while they may feel that they know something is true, they can't necessarily meet the evidence standard that would be prevailing in a domestic court?

JENNY MARTINEZ:

What's really interesting about the charges that have actually been brought against Mr. Padilla, aside from the fact that they're completely unrelated to the grounds on which the government has detained him for the past three-and-a-half years, is that the indictment against the other individuals in Florida was made public more than a year ago. So in terms of when they got the evidence that they might add him to this indictment, from the public indictment, they could have done that more than a year ago.

And so I think that the timing really isn't coincidental when you look at the likelihood of Supreme Court review and the general defensive posture that the Bush administration finds itself in now with respect to detainee issues.

Once the Supreme Court agreed a few weeks ago to hear the Military Commission's case, the Hamdan case, with the McCain amendment and things like that, I think that there is a link between those things and the indictment being handed down this week.

RAY SUAREZ:

Well, Professor, the attorney general wouldn't speak directly to the question. Is he still, as far as you know, an enemy combatant?

JENNY MARTINEZ:

The president's order certainly doesn't say he's not an enemy combatant. And there is nothing the government has said that would lead us to believe that they no longer consider him an enemy combatant or that they couldn't just return him to the military brig any time their want.

They don't like how the criminal trial is going, if they lose some motions in the trial, if he gets acquitted, there's nothing in what the government has said to indicate that they wouldn't just take him right back to the brig. In fact, that's either what they've done or threatened in other cases.

So Mr. Almari, one of the other enemy combatants held in the United States, was already in criminal proceedings. The government lost some pre-trial motions in that case and then declared him an enemy combatant and took him out of the criminal system.

And in other cases, in guilty-plea negotiations, reportedly, according to news accounts, the government has told defendants in criminal cases that if they don't plead guilty they might just be deemed enemy combatants and detained indefinitely without charge.

So that's one of the reasons why it's so important we think for the Supreme Court to still hear this case because it is a live issue for Mr. Padilla in terms of the threat of him being returned to the brig, and it's a live issue for everyone else in the United States who also faces the risk of being detained as an enemy combatant without charge as long as the lower court's decision in this case is still on the books.

RAY SUAREZ:

Well, Brad Berenson, given what the professor just said and given what lower courts have said, both in favor and against the enemy combatant ruling, are you confident that the idea that a U.S. citizen could be arrested in the United States and held indefinitely on the say-so of the executive branch would stand up to High Court review now?

BRAD BERENSON:

Well, the Supreme Court in recent years has been quite unpredictable in how it has dealt with some of these war-on-terror issues.

For example, the Supreme Court's decision to allow enemy alien combatants held overseas at Guantanamo to come into our courts and sue the president in habeas corpus was something that would have been nearly impossible to anticipate based on the existing law on the books.

So I can't say in trying to handicap the outcome of Supreme Court cases that I'm absolutely confident that that power would have been upheld or would be upheld if Padilla's case is reviewed. I think it would be a close thing in our current Supreme Court.

What I can say is that that power is far from unprecedented. I'm confident that the administration still does very much regard Jose Padilla as an enemy combatant. This was a member of al-Qaida who traveled to Afghanistan, received terrorism training at the notorious al-Farouq camp, had meetings with senior al-Qaida leaders like Khalid Sheikh Mohammed and Abu Zubaida and returned on orders from them to the United States to commit serious acts of domestic terrorism here.

If we are indeed at war, and I certainly believe we are, that is a classic enemy combatant who can be dealt with by the president under the president's commander-in-chief military war powers and not just under the president's law enforcement powers.

RAY SUAREZ:

So do you agree with Professor Martinez that if he was to be found not guilty of the current charges contained in the indictment that he could be sent back to the brig in Charleston still as an enemy combatant?

BRAD BERENSON:

I think that would be legally possible. There would be other constraints, political and diplomatic, that might make that very difficult for the administration to do, but the administration clearly regards this as a very, very dangerous individual, and they've shown that they're willing to do what they need to do within the limits of the law to try to keep him out of our streets and people like him out of our skies as well.

RAY SUAREZ:

Well, Professor Martinez, given what you know about the case now, do you think it's legally and constitutionally possible to craft a law that protects the United States against people it knows or believes to be dangerous but can't necessarily bring the evidence into an open court to say so?

JENNY MARTINEZ:

Well, the Constitution is not a suicide pact, but it has only one emergency provision, which is the habeas suspension clause, which allows the Congress, not the president, in case of rebellion or invasion, to suspend the right to habeas corpus, that is the right of individuals to go to a court and seek review of their detention.

And we believe that unless and until Congress suspends the writ of habeas corpus because of rebellion or invasion, there is no constitutional mechanism for simply picking up American citizens here in the United States and holding them without criminal charge or trial.

If you look at what other countries like the United Kingdom or Israel or Spain have done, as well, you can see that they've made some modification to their criminal procedure laws to allow a slightly longer period of pretrial or pre-charging detention in terrorism cases but it's by a matter of weeks or days, not by months and years.

So, for example, the British parliament was recently debating whether to extend the time that they could hold terrorism suspects without bringing charges up to 28 days. That's a far cry from three-and-a-half years.

RAY SUAREZ:

Well, Brad Berenson, right now, as I understand it, there is one other man arrested on U.S. soil and declared an enemy combatant. He's not an American citizen. Ali Saleh Kaleb Almari was arrested in Illinois, and he's been in one kind of confinement or another since 2001. How does his case hinge on or not hinge on what happens to Jose Padilla?

BRAD BERENSON:

Well, I think at this point it does not hinge much on what happens to Jose Padilla in the criminal courtroom. The charges against Padilla in Miami are peculiar to him, and he'll either be found guilty or not guilty of those charges. And that won't have much impact on any other enemy combatant citizen or not. If Padilla's case is nonetheless reviewed by the Supreme Court, then what the Supreme Court has to say in its decision could have an impact on people like Almari.

Now there's a big difference in the law and in the way the justices have already indicated that they regard these issues of presidential war power between how one treats a U.S. citizen and how one treats an alien who is entitled to a much lower level of protection under our Constitution.

So it's difficult to predict with any certainty how a ruling in the case of a U.S. citizen combatant, like Padilla, would translate into that of a non-citizen. But it's only in the event that the Supreme Court reviews Padilla's case that there's any chance that what happens here will impact guys like Almari.

RAY SUAREZ:

Brad Berenson, Professor Martinez, thank you both.

BRAD BERENSON:

Thank you.