Right to interrogate al-Qaida captives without lawyers at stake

Tuesday, January 20, 2004

WASHINGTON -- An interrogator begins questioning an al-Qaida prisoner who may know of a pending attack. The captive turns to his attorney, who tells him that he can remain silent. The suspect clams up.

The scenario is the Bush administration's legal nightmare, but there is significant concern that it could come true. The Supreme Court will decide this year whether U.S.-designated "enemy combatants" -- U.S. citizens and foreigners -- can be detained indefinitely without attorneys and hearings.

"Any lawyer worth his salt will say to a client, 'Don't say anything because it can be used against you,'" said Lee Casey, a Washington attorney and a Justice Department lawyer in the Reagan and first Bush administrations.

Several former Justice Department officials and the former highest-ranking Army lawyer said if the Supreme Court sides with the combatants it could be devastating for intelligence gathering.

"It's vital to national security to interrogate individuals and obtain information about threats, including immediate threats to our country," said Alice Fisher, who recently left the Justice Department as a deputy assistant attorney general overseeing counterterrorism cases.

There are two U.S. citizens being held as enemy combatants, while more than 600 suspected al-Qaida and Taliban fighters are detained at the U.S. Navy base in Guantanamo, Cuba. Information gleaned from those suspects has led to arrests around the world and helped the international intelligence community learn much about al-Qaida's operations, authorities have said.

The president of the Center for Constitutional Rights, a civil liberties law firm that represents several detainees, said the price paid in loss of constitutional protections is too high.

"Our fundamental argument is that everybody deserves some kind of a hearing before they can be in long-term detention," said Michael Ratner. He is seeking military hearings for Guantanamo detainees that would not stop interrogations, but would review each case and could bring freedom to anyone determined not to be a combatant.

Giving constitutional protections to captured terrorists would send an unmistakable message to al-Qaida, said retired Maj. Gen. Michael Nardotti, a Washington attorney who was judge advocate general of the Army. The message: "If Americans are foolish enough to grant rights given to American citizens, and if you understand your rights, you won't have to give up anything that will compromise this organization."

The Supreme Court should have a lot to say this year about legal protections for enemy combatants.

The justices will consider an appeal that asks whether the Guantanamo prisoners may contest their captivity in American courts. The court also agreed to hear the case of U.S.-born Yaser Esam Hamdi, a foot soldier captured in 2001 during the fighting in Afghanistan and detained without access to a lawyer.

Last Friday, the Bush administration asked the court to decide, by summer, whether the government could indefinitely detain -- without charges -- former Chicago gang member Jose Padilla. He was arrested in May 2002 in an alleged plot to detonate a radioactive "dirty bomb."

The Padilla case may be the crucial test of the government's ability to interrogate captives without a lawyer, because he may have had knowledge of a pending attack.

The prisoner "represents a continuing, present and grave danger to the national security of the United States," Solicitor General Theodore Olson wrote the court.

The 2nd U.S. Circuit Court of Appeals gave the government 30 days to release Padilla from military custody, but said the government was free to transfer him to civilian authorities who can bring criminal charges. The government asked Friday that the order be suspended.

"In the case of U.S. citizens, ordering immediate judicial process would jeopardize the executive's need in obtaining intelligence information," said Viet Dinh, a Georgetown University law professor who recently headed the Justice Department's Office of Legal Policy.

"The courts recognize that these are very high stakes. Nobody contests that Padilla had very nefarious plans."

On the Net:

Justice Department main site http://www.usdoj.gov/

Justice Department terrorism site http://www.usdoj.gov/ag/terrorismaftermath.html

Defense Department main site http://www.defenselink.mil/

Center for Constitutional Rights http://www.ccr-ny.org/v2/home.asp

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