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February 11, 2004

Executive Branch Moves To Undercut Padilla Suit

The Pentagon announced today that it will allow Jose Padilla to have access to a lawyer, under unspecified "security restrictions."

The announcement, coming just weeks before the Supreme Court would have ruled in Padilla's legal suit seeking access to counsel.

In a sharp reversal of its previous claims, the Pentagon says that allowing Padilla to consult a lawyer will not compromise national security. In court arguments at the circuit level, the Defense Department had argued that national security would be gravely harmed if Padilla's interrogation was interrupted or if he was allowed contact with the outside world.

Today's announcement notably omitted any mention of when such a meeting would take place, under what circumstances and whether Donna Newman, the lawyer currently acting on Padilla's behalf, would be allowed to meet him or if another lawyer would be appointed.

The move to allow access was mostly likely spurred by the government's desire to avoid setting a legal precedent on how it must treat enemy combatants. A similar move by the Pentagon allowed another enemy combatant and U.S. citizen, Yaser Hamdi, a single meeting (so far) with a lawyer earlier this month.

However, the move may not prevent the Supreme Court from ruling on the broad issue of constitutional rights in the context of the War on Terror. Having accepted the case, the High Court may well choose to rule on both Padilla and Hamdi, who were detained under markedly different circumstances and may be subject to different resolutions.

For more on the Jose Padilla case, read the INTELWIRE Backgrounder dated 1/12/2004.

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