A black and white case of US injustice

Jose Padilla was a devout Muslim, born on the wrong side of the tracks. White, middle-class John Walker Lindh shared his religion but little else. Rupert Cornwell examines their unequal treatment before the law
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The Independent US

The news burst upon America with almost as much impact as the use of the terrifying weapon that was alleged to be involved would have caused. It was mid-morning Washington time on Monday, 10 June 2002, when the cable television networks and radio stations cut into their schedules to show a press conference by the Attorney General, John Ashcroft, that had been called routinely after a working visit to Moscow.

Mr Ashcroft informed his startled and fearful countrymen 5,000 miles away that a month earlier the FBI, of which he is ultimately the head, had arrested a suspected dirty bomber as he entered the US, apparently bent on sowing mayhem and destruction by exploding a radioactive device in a large American city.

Suspicions that the Attorney General - never one to hide his law enforcement light under a bushel - might be overstating matters were soon kindled, however, when Paul Wolfowitz, the Deputy Defence Secretary, said that the suspect apparently had no specific target. There was "no actual plan", Mr Wolfowitz said, although he had indicated "some knowledge of the Washington DC area".

The suspect in question was Jose Padilla, an American citizen who had converted to Islam, moved to the Middle East, and who was identified as being an "al-Qa'ida operative" named Abdullah al-Mujahir. For the government, that was that. Mr Padilla was sent to a military prison where he remains to this day. All efforts to bring him into the judicial mainstream have thus far failed.

But Mr Padilla has become a cause célèbre - the most extreme example, civil liberties groups say, of how the Bush administration has brushed aside the very rudiments of justice and civil rights in its pursuit of the "war on terror".

Tomorrow, belatedly, Mr Padilla has his day in the legal sun. The Supreme Court will hear oral arguments resulting from the most serious effort yet to free him.

The docket, No. 03-1027, bears the title "Rumsfeld vs Padilla". It may just be the most important case of its kind in half a century, in setting the limits of presidential power, and determining whether an American citizen can be denied justice in his own country.

"An American citizen" are the three words that are the very heart of the controversy over Mr Padilla. Much has been written about the plight of the 600-plus detainees at Guantanamo Bay in Cuba, like him held without lawyers and without charge. But almost without exception they are foreign nationals, captured outside the US.

Mr Padilla was not captured on a foreign battlefield in the service of an enemy power, but as he stepped unsuspectingly off a commercial jet at Chicago's O'Hare Airport, returning to the US to visit his American mother in Florida and his 12-year-old son. He was arrested not by the military, but by civilian law enforcement officers of the FBI.

Some six months earlier, John Walker Lindh, another American citizen had been captured in the war against terrorism, dragged from a fortress in Afghanistan where his fellow Taliban fighters were engaged in a bloody battle with Afghan foes and US special forces. Lindh, like Mr Padilla, had converted to Islam, and gone to live in the Muslim world. He chose Afghanistan, while Mr Padilla settled in Egypt, where he remarried and had two further children.

The treatment they received at the hands of American justice was, however, very different. Throughout, Lindh enjoyed proper representation. Ultimately he was sentenced to 20 years in jail, after a plea bargain by which prosecutors dropped the most serious charge against him, of conspiracy to kill US nationals.

There was even a certain condescending sympathy for him. A "poor, misguided Marin County hot-tubber," was the almost kindly description of Lindh by the former President Bush to the famously liberal district just north of San Francisco where Lindh grew up.

Mr Padilla has been less fortunate, even though he was no less a US citizen. His background is not salubrious: he is from working-class Chicago, where he mingled with street gangs and was placed in juvenile detention at the age of 14, when a robbery attempt in which he was involved turned into murder.

His mother, Estela Ortega Lebron, is furious at the unequal treatment. "That John Walker Lindh, they didn't make him disappear, take away his rights," she told The New York Times, "I guess maybe because his father's a lawyer - he's white, whatever."

At least an equal reason, however, may be the exasperation of the Bush administration at the inconvenient complexities of the civil judicial system. The Lindh case had proved tricky to prosecute. That summer of 2002 was also when the trial of Zacharias Moussaoui, originally supposed to have been the missing "20th hijacker" of 11 September, was tying the US legal system into knots (a situation in which it remains today) with his demand to have captured al-Qa'ida operatives testify in his defence.

How much simpler, then, to declare Mr Padilla an enemy combatant like the detainees at Guantanamo Bay, thus dispensing with the niceties of defence lawyers, trials and witnesses who might give away US intelligence secrets.

After his arrest Mr Padilla was shipped from Chicago to a high-security detention centre in New York City, where he was held as a material witness - a category enabling a suspect to be held without charges, widely used by the US authorities in the war against terrorism.

In New York he was given a court-appointed lawyer, Donna Newman. At their first meeting Mr Padilla was brought out in the so-called "three-piece suit" of leg-irons, chains and a metal belt, suggesting he was a dangerous criminal. The affidavit provided by the FBI alleged that he was part of a plot, but that some of the informants were unreliable. No further evidence was immediately forthcoming. Ms Newman secured a hearing set for 12 June, 2002, to demand Mr Padilla's release.

But at that point everything changed. On 10 June, President Bush signed a determination that Mr Padilla had been an enemy combatant when he arrived in Chicago a month earlier. It stated he was "closely associated with al-Qa'ida, an international terrorist organisation with which the US is at war". As an enemy combatant he could be held incommunicado as long as that war lasted.

Within minutes, Mr Ashcroft was popping up from Moscow with the bombshell news of an "unfolding plot" to explode a radioactive dirty bomb that could have caused "mass death and injury". The initial impression was that the FBI had foiled at the last minute a conspiracy to take out downtown Manhattan or Washington DC. Mr Padilla was handed over to the military and placed in solitary confinement in a brig in South Carolina, where he remains to this day.

Initially, some in Congress expressed public unease at how a US citizen could be denied the most elementary legal rights by his own country, but anxieties were soon quelled by Bush officials, who insisted that nothing could be allowed to interfere with the war on terror. The case, moreover, only seemed to confirm the worst nightmare of that war, that weapons of mass destruction might fall into the hands of terrorists.

Legal efforts to extricate Mr Padilla have been under way almost ever since, but to no avail. In early 2003 a federal judge conceded the government had the authority to hold a person, even a citizen, as an enemy combatant, but he ordered the Pentagon to give Mr Padilla access to lawyers. Again, the Defence Secretary, Donald Rumsfeld, refused, arguing the mere availability of a lawyer might make a detainee less willing to co-operate with interrogators.

The tussle continued throughout last year. In December 2003 a federal appeals panel of three judges ordered Mr Padilla to be freed within 30 days unless the government formally charged him with a crime. The ruling was by a 2-1 majority, but even the judge who sided with the government agreed Mr Padilla ought to be able to see a lawyer.

The Pentagon allowed that. It also relented by permitting the International Red Cross to visit him. The IRC has long been allowed to see notable prisoners of war - most recently Saddam Hussein - but this was the very first time it had been involved in the detention of an American citizen in the United States by the US government.

The session on 3 March with the lawyers was, however, anything but confidential, with a videocamera running and military officials present throughout. In the meantime the Pentagon lodged the appeal on which the nine justices of the Supreme Court will hear arguments tomorrow.

Even now, beyond the assurance of President Bush that Mr Padilla was "a bad guy," the Pentagon has given no detailed indication of the evidence it has against him. Almost two years after his arrest no charges have been brought, and the suspect maintains his innocence. "Do not believe what is being said about me in the news, it is untrue," he wrote in a postcard to his mother in mid-2003, the one communication that he has been permitted from military custody in South Carolina. His mother has not been able to see him since his arrest.

Whatever case there is primarily rests on visits Mr Padilla is said to have made in 2000 and 2001 from Egypt to Yemen, Pakistan, and Afghanistan. In Afghanistan, US officials said when his arrest was made public, he met Abu Zubeida, one of the first senior al-Qa'ida operatives captured after the collapse of the Taliban in March 2002.

Abu Zubeida apparently co-operated with his US interrogators, and told them about the man he knew as Abdullah al-Mujahir, and their discussions of various plans for terrorist attacks, including a dirty bomb.

It is also claimed that phone intercepts and captured al- Qa'ida documents from Afghanistan implicate Mr Padilla. But basically, the Pentagon's argument boils down to the familiar, steadily less convincing refrain of "trust us, we know what we're doing and we know best".

Since January, as the clamour surrounding Mr Padilla has grown, senior Bush administration officials have attempted a defence of his continued detention, of kinds. Alberto Gonzales, the White House counsel, told the American Bar Association that the administration had conducted a "careful, thorough and deliberative process" over Mr Padilla, and that people were not designated enemy combatants without very good reason.

The Defence Secretary himself invoked "the law of war" - "to keep the enemy off the battlefield so they can't kill more innocent people". Nothing that either Mr Rumsfeld or Mr Gonzales said, however, reduces the suspicion that, not for the first time, a secretive and highhanded administration may merely be unable to admit it has made a mistake.

Nor, civil rights specialists point out, does any law of war allow a person to be held for ever, without the most elementary rights. Almost two years on, whatever information Mr Padilla could provide would surely be largely worthless, either out of date or overtaken by events. If the Supreme Court agrees when it hands down a judgement later this year, legal history will be made.