ACLU/NYCLU Call Victory for Right to Counsel in Enemy Combatant Case Positive Step

“This ruling is a crucial rejection of the Bush Administration’s claim of almost unbridled power to unilaterally detain American citizens and hold them indefinitely and incommunicado,” said Lucas Guttentag, Director of the ACLU’s Immigrant’s Rights Project and one of the lawyers who filed the ACLU’s brief in support of Padilla. “The court rightly ruled that Padilla is entitled to his day in court with his lawyer to challenge the government’s detention.”

“The decision is a critical first step to providing a check on the government’s use of the enemy combatant designation,” Guttentag added.

At issue is a ruling by U.S. District Judge Michael Mukasey that alleged “dirty bomber” Jose Padilla (also known as Abdullah Al-Mujahir) can have his status as an “enemy combatant” reviewed in federal court, and that Padilla must have access to counsel in the interim before his status is decided.

Last week, the Washington Post reported that the enemy combatant designation is part of a parallel track of criminal justice, which the administration is developing in an effort to circumvent traditional criminal justice protections of due process for terrorist suspects.

Today’s decision makes clear that such a parallel track, devoid of all rights for those designated enemy combatants cannot legally stand. At the same time, the decision represents only a critical first step in the fight to keep the Administration within the bounds of the Constitution and Bill of Rights,according to Arthur Eisenberg, legal director of the NYCLU and co-counsel on the ACLU’s brief. In particular, he noted, “the ACLU continues to believe that American citizens cannot be detained indefinitely without charges or trial, even if ultimately classified as an enemy combatant.”

Padilla, an ex-Chicago gang member and petty criminal, was accused in May of conspiring with al-Qaeda operatives to detonate a radiological weapon, or “dirty bomb.” In June, the government took the drastic step of declaring him an “enemy combatant,” denied all access to counsel and has held him incommunicado and without charge in a Navy brig ever since. The administration’s strategy had provoked wide criticism in the media and among the general public.