Wednesday, June 09, 2004

The Least They Can Do 

Via Atrios, the new article by Michael Isikoff and Mark Hosenball of Newsweek, which -- in light of recent Justice Department memos intended to place the executive branch above and beyond the reach of the law -- predicts a definitive Supreme Court pimp-slapping for the administration in its extralegal treatment of detainees:
Justice Department lawyers, fearing a crushing defeat before the U.S. Supreme Court in the next few weeks, are scrambling to develop a conventional criminal case against “enemy combatant” Jose Padilla that would charge him with providing “material support” to Al Qaeda, NEWSWEEK has learned.

The prospective case against Padilla would rely in part on material seized by the FBI in Afghanistan—-principally an Al Qaeda “new applicant form” that, authorities said, the former Chicago gang member filled out in July 2000 to enter a terrorist training camp run by Osama bin Laden's organization.

But officials acknowledge that the charges could well be difficult to bring and that none of Padilla’s admissions to interrogators—including an apparent confession that he met with top Al Qaeda leader Abu Zubaydah and agreed to undertake a terror mission—would ever be admissible in court.

Even more significant, administration officials now concede that the principal claim they have been making about Padilla ever since his detention—-that he was dispatched to the United States for the specific purpose of setting off a radiological “dirty bomb”—-has turned out to be wrong and most likely can never be used against him in court.

The reassessments of Padilla come amid a growing sense of gloom within Justice that the Supreme Court is likely to rule decisively against the Bush administration not just in the Padilla case but in two other pivotal cases in the war on terror: one involving the detention of another “enemy combatant,” Yasir Hamden, and another involving the treatment of Al Qaeda and Taliban prisoners at Guantanamo Bay, Cuba. In the Padilla and Hambdi cases, the administration is arguing it has the right to hold the two U.S. citizens indefinitely without trial. In the Guantanamo case, the administration argues that foreign nationals being interrogated there there do not have the right to challenge their detention in federal courts.

Lawyers within the Justice Department are now bracing for defeat in both the enemy-combatant and Guantanamo cases, both of which are expected to be decided before the Supreme Court ends its term at the end of the month, according to one conservative and politically well-connected lawyer. “They are 99 percent certain they are going to lose,” said the lawyer, who asked not to be identified. “It’s a very sobering realization.”

While Supreme Court forecasts are hazardous at best, the conventional wisdom among former Supreme Court clerks is that recent disclosures about the Abu Ghraib prison scandal and internal administration memos disavowing compliance with international treaties involving treatment of prisoners has badly hurt the government’s arguments before the court and turned two key “swing” justices—-Sandra Day O’Connor and Anthony Kennedy—-against it, the lawyer said.

Insider thinking within Justice has the Supreme Court voting six to three against the administration on Guantanamo and by a perhaps even larger margin in the Padilla and Hamdi cases.
The criminal case against Padilla may be difficult to sell, not least because it's been slung together by scientific illiterates (link via Zemblan patriot T.H.):
The "dirty bomb" allegedly planned by terror suspect Jose Padilla would have been a dud, not the radiological threat portrayed last week by federal authorities, scientists say.

At a June 1 news conference, the Justice Department said the alleged al-Qaida associate hoped to attack Americans by detonating "uranium wrapped with explosives" in order to spread radioactivity.

But uranium's extremely low radioactivity is harmless compared with high-radiation materials -- such as cesium and cobalt isotopes used in medicine and industry that experts see as potential dirty bomb fuels.

"I used a 20-pound brick of uranium as a doorstop in my office," American nuclear physicist Peter D. Zimmerman, of King's College in London, said to illustrate the point.

Zimmerman, co-author of an expert analysis of dirty bombs for the U.S. National Defense University, said last week's government announcement was "extremely disturbing -- because you cannot make a radiological dispersal device with uranium. There is just no significant radiation hazard."

Other specialists agreed. "It's the equivalent of blowing up lead," said physicist Ivan Oelrich of the Federation of American Scientists.

When Padilla was arrested in June 2002, after returning to Chicago from Afghanistan and Pakistan, Attorney General John Ashcroft said the ex-Chicago gang member and Muslim convert had planned a dirty bomb that could "cause mass death and injury." Washington, D.C., was the likely target, his department said.

But it wasn't until Deputy Attorney General James Comey's briefing for reporters last week that authorities said Padilla had uranium in mind for his radiological dispersal device, or RDD, the technical term for such a weapon. Comey said the detainee disclosed he'd also been sent to set off natural gas explosions in U.S. apartment buildings.

"Just saying the word 'uranium,' the public automatically assumes, `Oh, it sounds bad,"' said physicist Charles Ferguson of the Washington office of California's Monterey Institute of International Studies. He co-authored one of the most detailed reports on the dirty-bomb threat.
Okay, so the dirty-bomb threat is a load of horseshit; what about the natural-gas explosions? Well, according to James Ridgeway --
Blowing up a building with natural gas could turn out to be a pretty dubious proposition. Chris Olert, a spokesperson for Con Ed, when asked whether he had ever come across a case of natural gas being used to intentionally blow up an apartment building, replies, "No." Asked whether this was something Con Ed feared might happen, Olert says, "No, I don't believe so."

Daphne Magnuson, a spokesperson for the American Gas Association, which represents natural gas utilities, says, "You would have to have the perfect mix of factors" to use natural gas for an explosion, and "it would have to be mixed with the right amount of oxygen." And you must have a source of ignition. In addition, she notes, gas has the very strong odorant mercaptan added to it, which makes it difficult to have a leak without people noticing it.
Nat Hentoff of the Village Voice cuts to the heart of the issue:
After two years during which Jose Padilla has been imprisoned in a windowless cell in a navy brig on American soil without charges—and in the final days of the Supreme Court's arriving at a decision in his case—Deputy Attorney General James Comey suddenly hurled a list of detailed accusations against this "enemy combatant" as designated by George W. Bush.

Comey was not speaking in a court-room but rather in a nationally televised press conference. Padilla could not reply to those denunciations in his own defense. Nor could his lawyers. The government had at last allowed them to speak to their client twice after the Supreme Court had surprised the Bush team by taking Hamdi's case. But their meetings with their client were listened to and videotaped by the government.

Moreover, one of Padilla's lawyers, Andrew Patel, tells me that the government has ruled that Padilla's attorneys cannot tell anyone what Padilla would say in answer to any government accusations because everything he told his lawyers is classified. Nor could his lawyers ask him about what he said in his interrogations . . . .

But even the government's documents, to which Comey referred, concede in a footnote, as The New York Sun reported, that "Padilla tried to downplay or deny this commitment to Al Qaeda and the apartment building mission. He said he never pledged an oath of loyalty and was not part of the Al Qaeda. He said he and his accomplice proposed the dirty bomb plot [for which he was first arrested at O'Hare Airport] only as a way to get out of Pakistan and to avoid combat in Afghanistan. He said he returned to America with no intention of carrying out the apartment building operation."

How many Americans who heard or read Comey's extrajudicial public indictment of Padilla know about that footnote, to which Comey only barely referred? But Comey did admit that all of Padilla's connections to Al Qaeda that were "admitted" by Padilla could not be entered as evidence in an American courtroom because they took place without the presence of one of Padilla's lawyers. Again, trust your government!

In his statement, Comey insisted that the release of this "information" was in no way intended to influence the Supreme Court's decision as to whether American citizen Padilla should be entitled to the basic due process of appearing for himself in an American courtroom. The government, said Comey, just wanted to clarify for the public the reason for George W. Bush's most controversial unilateral decision, to take away from this American citizen the right to habeas corpus. This is the oldest act in the English-speaking world, to have a judge decide whether someone is being lawfully detained. Had he been actually tried, said Comey, his lawyer would have told him to be silent.

I do not believe Mr. Comey. I believe this last-minute Hail Mary plea was in fact aimed at the most powerful woman in the country. During Supreme Court oral arguments in the Padilla and Hamdi cases, Justice Sandra Day O'Connor seemed likely, as often happens, to be the fifth and deciding vote, and of all the justices, she was the most conflicted as to how to rule. Will the government strategy backfire because the sudden fusillade against Padilla was so transparently an attempt to manipulate the Supreme Court?

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