After two years in prison, American 'terrorist' finally gets day in court

1.00pm - By RUPERT CORNWELL

WASHINGTON - The news burst upon America almost as stunningly as would have the terrifying weapon that was alleged to be involved.

Mid-morning Washington time on Monday, June 10, 2002, the cable TV networks and radio stations abruptly cut into their schedules to broadcast what would ordinarily have been a routine press conference by the Attorney General John Ashcroft after a working visit to Moscow.

Instead, Mr Ashcroft informed his startled and fearful countrymen 8000km away that a month earlier the FBI, of which he is ultimately in charge, had arrested a suspected dirty-bomber as he entered the US, apparently bent on sowing mayhem and destruction by exploding a radio-active device in a large American city.

Suspicions that the flinty-eyed Attorney General - never one to hide his law enforcement light under a bushel - might be overstating matters were soon kindled when Paul Wolfowitz, the deputy Defence Secretary, assured that the suspect apparently had no specific target. There was "no actual plan," Mr Wolfowitz declared, although he had indicated "some knowledge of the Washington, DC area".

The suspect in question was Jose Padilla, an American citizen who had converted to Islam, moved to live in the Middle East, and who was identified as an "al Qaeda operative" named Abdullah al Mujahir. And for the government, that was that. Mr Padilla was sent to a military prison where he remains to this day. All efforts to bring him into the judicial mainstream have thus far failed.

But Mr Padilla has become a cause celebre - the most extreme example, civil liberties groups say, of how the Bush administration has brushed aside the very rudiments of justice and civil rights in its pursuit of the war against terror.

Tomorrow, belatedly, Mr Padilla has his day in the legal sun. The Supreme Court will hear oral arguments in the most serious effort to free him yet.

The docket, No. 03-1027, bears the arid title of Rumsfeld v Padilla. It may just be the most important case of its kind in half a century, in setting the limits of Presidential power, and determining whether an American citizen can be denied justice in his own country.

'An American citizen.' Those three words are the very heart of the controversy over Mr Padilla. Much has been written about the plight of the 600-plus detainees at Gunatanamo Bay in Cuba, like him held without lawyers and without charge. But almost without exception they are foreign nationals, captured outside the US.

Mr Padilla was not captured on a foreign battlefield in the service of an enemy power, but as he stepped unsuspectingly off a commercial jet at Chicago's O'Hare airport, returning to the US to visit his American mother in Florida and his 12-year-old son by his first marriage. He was arrested not by the military, but by civilian law enforcement officers of the FBI.

Some six months earlier, John Walker Lindh, another American citizen, had been captured in the war against terror, dragged from the flooded basement of a fortress in Afghanistan where his fellow Taleban fighters were engaged in a bloody battle with Afghan foes and US special forces.

Lindh, like Mr Padilla, had converted to Islam and gone to live in the Muslim world. He chose Aghanistan, while Mr Padilla settled in Egypt, where he had remarried and had two further children.

But the treatment they received at the hands of American justice were very, very different. Throughout Lindh enjoyed proper representation. Ultimately, he was sentenced to 20 years in jail, but only after a plea bargain in which prosecutors dropped the most serious charge against him, of conspiracy to kill US nationals.

There was even a certain condescending sympathy for him. A "poor, misguided Marin county hot-tubber," was the almost kindly description of Lindh by George H.W. Bush, a reference by the former President to the famously liberal district just north of San Francisco, where Lindh grew up as a seemingly normal California teenager.

Mr Padilla has been less fortunate, even though he was no less a US citizen.

True, his background is unsalubrious, from working class Chicago, where he mingled with street gangs, and was placed in juvenile detention at the age of 14, when a robbery attempt in which he was involved turned into a murder.

Hardly surprisingly, his mother, Estela Ortega Lebron, is furious at the disparate treatment.

"That John Walker Lindh, they didn't make him disappear, take away his rights," she told the New York Times. "I guess maybe because his father's a lawyer. He's white, whatever."

At least an equal reason however may be the exasperation of the Bush administration at the inconvenient meanderings and complexities of the civil judicial system.

The Lindh case had proved tricky enough to prosecute. That summer of 2002 was also when the planned trial of Zacharias Moussaoui, originally supposed to have been the missing '20th hijacker' of September 11 2001, was tying the US legal system into knots (a situation in which it remains today) with his demand to have captured al Qaeda operatives testify in his defence.

How much simpler, then, to declare Mr Padilla an enemy combatant like the detainees at Guantanamo Bay, thus dispensing with the niceties of defence lawyers, trials and witnesses who might give away super-sensitive US intelligence secrets.

After his arrest, Padilla was shipped from Chicago to a high-security detention centre in New York City, where he was held as a material witness, a category enabling a suspect to be held without charges, widely used by US authorities in the war against terrorism.

In New York, he was given a court-appointed lawyer, Donna Newman. At their first meeting Mr Padilla was brought out in all the so-called "three piece suit" of leg irons, chains and a metal belt, suggesting he was a dangerous criminal. The affidavit provided by the FBI alleged that Padilla was part of a plot, but that some of the informants were unreliable. No further evidence was immediately forthcoming from the authorities.

Ms Newman secured a hearing on June 12, 2002, to demand Mr Padilla's release. But at that point everything changed.

On June 10, President Bush signed a determination that Padilla had been an enemy combatant when he arrived in Chicago exactly a month earlier, who was "closely associated with al Qaeda, an international terrorist organisation with which the US is at war."

As an enemy combatant, he could be held incommunicado as long as that war lasted - for years, decades, conceivably for ever.

Within minutes, Mr Ashcroft was popping up from Moscow with the bombshell news of an "unfolding plot" to explode a radioactive dirty bomb that could have caused "mass death and injury".

The initial impression was that the FBI had foiled at the last minute a conspiracy to take out down town Manhattan or Washington DC. Mr Padilla was handed over to the military and placed in solitary confinement in a brig in South Carolina where he remains to this day.

Initially some in Congress expressed public unease at how a US citizen could be denied the most elementary legal rights by his own country. But anxieties were soon quelled by Bush officials, who insisted that nothing could be allowed to interfere with the war on terrorism. The case moreover only seemed to confirm the worst nightmare of that war, that weapons of mass destruction might fall into the hands of terrorists.

Legal efforts to extricate Mr Padilla have been underway almost ever since, but to no avail. In early 2003, a federal judge conceded that the US government had the authority to hold a person, even an American citizen, as an enemy combatant. But he ordered the Pentagon to give Padilla access to lawyers.

But again, Defence Secretary Donald Rumsfeld refused, arguing that the mere availability of a lawyer might make a detainee less willing to co-operate with interrogators.

The tussle continued throughout last year. In December 2003, a federal appeals panel of three judges ordered Mr Padilla to be freed within 30 days, unless the government formally charged him with a crime. That ruling was by a 2-1 majority, but even the judge who sided with the government agreed that Padilla ought to be able to see a lawyer.

The Pentagon responded by allowing Padilla at last to meet his lawyers. It also relented by permitting the International Red Cross to visit the prisoner. The IRC has long been allowed to see notable prisoners of war - most recently of course Saddam Hussein. But this was the very first time it has been involved in the detention of an American citizen in the US by the US government.

In the event, the session on March 3 with the lawyers was anything but confidential, with a video camera running and military officials present throughout. In the meantime the Pentagon lodged the appeal on which the nine justices of the Supreme Court will hear oral arguments tomorrow.

Even now, beyond the assurance of President Bush that Padilla was "a bad guy," the Pentagon has given no detailed indication of the its evidence against him.

Almost two years after Padilla's arrest, no charges have been brought, and the suspect maintains his innocence: "Do not believe what is being said about me in the news, it is untrue," he wrote in a postcard to his mother in mid-2003, the one communication he has been permitted from the brig in South Carolina. She has not been able to see him since his arrest.

Whatever case there is primarily rests on visits Padilla is said to have made in 2000 and 2001 from Egypt (where he was living with his second wife) to Yemen, Pakistan, and Afghanistan. In Afghanistan, US officials said when his arrest was made public, he met Abu Zubaida, one of the first top al Qaeda operatives captured after the collapse of the Taleban, in March 2002.

Zubaida apparently co-operated with his US interrogators, and told them about the man he knew as Abdullah al Mujahir, and their discussions of various plans for terrorist attacks, including a dirty bomb.

It is also claimed that phone interceptions and captured al Qaeda documents from Afghanistan implicate Padilla. But the Pentagon's argument boils down to the familiar, steadily less convincing refrain of 'trust us, we know what we're doing and we know best'.

Since January, as the clamour surrounding Padilla has grown, senior Bush administration officials have attempted a defence of kinds. Alberto Gonzales, the White House counsel, told the American Bar Association that the Administration had conducted a "careful, thorough and deliberative process" over Mr Padilla, and that people were not designated enemy combatants without very good reason.

The Defence Secretary himself invoked 'the law of war' - in other words "to keep the enemy off the battlefield so they can't kill more innocent people."

Civil rights specialists say there is no 'law of war' that allows a person to be held for ever, without the most elementary rights.

Almost two years on, whatever information Mr Padilla could provide would surely be largely worthless, either out of date or overtaken by events. If the Supreme Court agrees, when it hands down a judgment later this year, history will be made.

- INDEPENDENT