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Attorney visits no closer for 'enemy combatant'Prosecutors: Visits may compromise military investigation
From Phil Hirschkorn
NEW YORK (CNN) -- A federal judge stopped short Thursday of setting the conditions under which defense attorneys could meet with Jose Padilla, an alleged al Qaeda associate named an "enemy combatant" by President Bush and held incommunicado in a South Carolina Navy brig for the past 10 months. But the judge indicated that he might do so, if only to expedite the government's appeal of his order that Padilla be permitted to meet with his attorneys. Prosecutors and Padilla's defense attorneys appeared before U.S. District Judge Michael Mukasey in what was supposed to be a hearing to solidify arrangements for the visits. Those visits, ordered earlier this month by Mukasey, are still in limbo as the Bush administration continually seeks to block Padilla from meeting his lawyers under any circumstances, arguing that any access to attorneys might compromise Padilla's ongoing interrogation by the military. "The major concern of the government is: allowing access is like breaking the proverbial pane of glass," said Deputy Solicitor General Paul Clement. It didn't matter, he said, if the break was the size of a "golf ball or a basketball." Padilla, 31, an American citizen with a criminal history, is alleged to have plotted to detonate a "dirty bomb" -- a conventional bomb laced with radioactive material -- inside the United States. The FBI arrested Padilla last May as he arrived at Chicago's O'Hare International Airport returning from a trip to Pakistan, and he was detained for a month under a material witness warrant signed by Mukasey. Court-appointed defense attorney Donna Newman met with Padilla more than 10 times in jail before Bush declared him an "enemy combatant" in June and the Justice Department transferred him to Defense Department custody. Newman, along with attorney Andrew Patel, is suing the president and Defense Secretary Rumsfeld to gain access to Padilla and to have him returned to New York. In December, Mukasey ruled that Bush's maneuver was lawful, but the judge has yet to rule on the merits of Padilla's detention, saying if Padilla has any evidence to offer, he can provide it only through his attorneys. Newman and Patel told Mukasey they want to meet Padilla for up to five hours a day over five consecutive days and not be separated from Padilla "by bars, screen, glass or any other physical barrier." Patel told Mukasey that five days was a "guestimate at best" of how much time they would need. Defense requestsThe attorneys want the military, 72-hours before their arrival, to discontinue any "sensory deprivation" interrogation techniques that may be used to "break the will" of detainees. They've also asked the judge to limit any monitoring of their conversations to video without audio, to protect attorney-client privilege, and to rule that their notes "not be subject to inspection, reading or confiscation." Information about the alleged "dirty bomb" plot initially came from interrogations of the captured al Qaeda leader Abu Zubaydah. Padilla, born in Brooklyn and raised in Chicago, has served prison time for a juvenile murder in Illinois and for gun possession in Florida. He took the name "Abdullah al Mujahir" after his conversion to Islam, and has lived in Egypt, Saudi Arabia and Afghanistan, according to the government. In a letter to the judge setting the stage for an appeal, James Comey, the U.S. attorney for the Southern District of New York, wrote the government "continues to believe that Mr. Padilla ... poses a danger to the national security of the United States and whose interrogation will promote public safety." Prosecutors have until Monday to file their motion asking Mukasey to certify the appeal, which would frame the legal questions to be considered by the higher court. "It appears he will impose conditions [for visits]," Newman said, at least to give the appeals court complete guidance on what needs it needs to review. "I am confident I will have access to Mr. Padilla," Newman continued. "I have to believe that, if I believe in the system, and I do."
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