U.S. Counterterrorism Initiatives Bring Legal Challenges

The U.S. Government’s counterterrorism initiatives continue to bring a number of transformations of the law and encounter legal challenges. On December 4, 2002, U.S. District Judge Michael B. Mukasey ruled that the court could review President George W. Bush’s decision to detain U.S. citizens Jose Padilla on charges that he planned to explode a radioactive bomb in the U.S. Judge Mukasey also rules Mr. Padilla had the right to have access to a lawyer and offer evidence to challenge his detention. Judge Mukasey ruled that Padilla can consult with counsel in her efforts to prosecute the petition of habeas corpus, under conditions that will minimize the likelihood that Padilla can use his lawyers as unwilling intermediaries for the transmission of information to others. If Padilla chooses, he can submit facts and argument to the court in aid of is petition. Judge Mukasey characterized the U.S. Government’s argument that Newman may be used by Padilla to transmit information to Al Qaeda as “gossamer speculation”. Judge Mukasey explained that no evidence existed that Padilla was so trained or capable or even had information to transmit. In any case, Judge Mukasey observed he already had met with counsel and that the latter was an officer of the court with the obligation to prevent such abuse of her role. To resolve the issue of whether Padilla was legally detained on the facts present in court, Judge Mukasey said the court will examine only whether President Bush had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence had been mooted by events subsequent to his detection. Judge Mukasey declared at that time to admit a Government declaration submitted in camera (i.e., secret) to determine wither the government has met that standard.