Two members of a three-judge federal appeals panel criticized Bush administration arguments yesterday that the president may indefinitely detain an Americans was arrested in this country as “enemy combatants” and deny them contact with lawyers, the New York Times reports. “As terrible as 9/11 was, it didn’t repeal the Constitution” said Judge Rosemary S. Pooler of the U.S. Court of Appeals for the Second Circuit in New York. Judge Barrington D. Parker Jr. said that accepting the government argument would mean “effecting a sea change in the constitutional life of this country.”
The court heard arguments in the case of Jose Padilla, an American arrested last year at Chicago’s O’Hare airport. Attorney General John Ashcroft said Padilla planned to explode a radiological “dirty bomb” in the United States.
Deputy Solicitor General Paul Clement said the nature of the conflict meant that military principles, not usual rules of criminal courts, had to be applied to protect the country. “Al Qaeda made the battlefield the United States,” Clement said. “And there’s every indication they want to make the battlefield the United States again.”
The third judge, Richard Wesley, sparred with his colleagues, suggesting that the terrorist attacks of Sept. 11, 2001, were different from other conflicts.
Michael B. Mukasey, chief federal district judge in Manhattan, ruled that President Bush had the authority to detain Padilla if there was “some evidence” he was involved in terrorism, but that Padilla had a right to meet with his lawyers. Padilla, a former Chicago gang member and a convert to Islam with a long criminal record, was arrested after traveling from Pakistan.