Patriot Act Author Has Concerns
     By Richard B. Schmitt
     Los Angeles Times

     Sunday 30 November 2003

Detaining citizens as 'enemy combatants' -- a policy not spelled out in the act -- is flawed, the legal scholar says.

     The Justice Department's war on terrorism has drawn intense scrutiny from the left and the right. Now, a chief architect of the USA Patriot Act and a former top assistant to Atty. Gen. John Ashcroft are joining the fray, voicing concern about aspects of the administration's anti-terrorism policy.

     At issue is the government's power to designate and detain "enemy combatants," in particular in the case of "dirty bomb" plot suspect Jose Padilla, the Brooklyn-born former gang member who was picked up at a Chicago airport 18 months ago by the FBI and locked in a military brig without access to a lawyer.

     Civil liberties groups and others contend that Padilla — as an American citizen arrested in the U.S. — is being denied due process of law under the Constitution.

     Viet Dinh, who until May headed the Justice Department's Office of Legal Policy, said in a series of recent speeches and in an interview with The Times that he thought the government's detention of Padilla was flawed and unlikely to survive court review.

     The principal intellectual force behind the Patriot Act, the terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks, Dinh has steadfastly defended the Justice Department's anti-terrorism efforts against charges that they have led to civil-rights abuses of immigrants and others. While the Patriot Act does not speak to the issue of enemy combatants, his remarks still caught some observers by surprise.

     In an interview, Dinh, a professor at Georgetown University Law Center, said the Padilla case was not within his line of authority when he was in the department, but that he began to think about the issue later, and came to the conclusion that the administration's case was "unsustainable."

     Another top former Justice Department official, Michael Chertoff, who headed the department's criminal division, has said he believed the government should reconsider how it designates enemy combatants.

     "Two years into the war on terror, it is time to move beyond case-by-case development," Chertoff said, according to an excerpt from a speech he gave last month at the University of North Carolina at Chapel Hill law school.

     "We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said.

     Chertoff, a federal appeals court judge, also mentioned at a judicial conference in Philadelphia this month the need to reexamine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."

     Chertoff emphasized in an interview that he wasn't venturing an opinion on the Padilla case, which is being litigated in the federal courts, or criticizing the decisions that the government has made to date in the case.

     The comments by Dinh and Chertoff offer some of the first public utterances by Justice Department officials who stood watch in the weeks and months after Sept. 11 on how they felt about the work done by them and their colleagues. The comments also illustrate the uncharted legal terrain they and others were operating under.

     Mark Corallo, a Justice Department spokesman, declined to comment on the remarks by the former officials, citing the fact that the Padilla case is pending in court. The department has staunchly defended its anti-terrorism record and its use of the tools in the Patriot Act, portions of which have been attacked as an abuse of government power by groups as diverse as the American Civil Liberties Union and the American Conservative Union.

     Dinh first flagged his concerns in a speech he gave in September at a human rights conference in The Hague sponsored by the Organization for Security and Cooperation in Europe. He reiterated them this month during a panel discussion with Chertoff and others on national security and civil liberties at the conference in Philadelphia.

     "The person next to me said, 'My God. He is saying that the Padilla case is wrong!' " said Philip Heymann, a Harvard Law School professor who also sat on the panel in Philadelphia and who agrees that the administration view in the case is wrongheaded.

     "There has to be some form of judicial review and access to a lawyer," said Heymann, a deputy attorney general in the Clinton administration. "That is what habeas corpus was all about. That is what the Magna Carta was all about. You are talking about overthrowing 800 years of democratic tradition."

     In the interview, Dinh said he believed the president had the unquestioned authority to detain persons during wartime, even those captured on "untraditional battlefields," including on American soil. He also said the president should be given flexibility in selecting the forum and circumstances — such as a military tribunal or an administrative hearing — in which the person designated an enemy combatant can confront the charges against him.

     The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.

     "The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to," Dinh said. "But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated."

     Padilla was arrested at O'Hare International Airport on May 8, 2002, after arriving on a flight from Pakistan. Initially, he was taken to New York and held as a "material witness," presumably to testify against others.

     The following month, he was transferred to a military prison in South Carolina after Ashcroft announced that the government had determined that he was part of an unfolding terrorist plot to explode a radioactive dispersion device, or so-called dirty bomb.

     Padilla's lawyers subsequently filed a writ of habeas corpus saying that he was being illegally held. The Justice Department responded by saying that the detention was a proper exercise of the president's wartime powers. A decision is pending before a federal appeals court in New York.

-------