Government Allows Suspected 'Dirty Bomber' To See Lawyers — Move Marks Sudden Shift On Eve Of Supreme Court Consideration

February 11, 2004
New Haven attorney involved in Padilla case available for comment
The federal government offered to allow the lawyers for suspected “dirty bomber” Jose Padilla to meet with their client for the first time since he was put in a military prison nearly two years ago.  The move is a sharp about-face for the Bush administration, which until now has repeatedly claimed that national security would be compromised if Padilla, an American citizen, were allowed to see his lawyers.
“It’s an important concession, but there’s a dark lining to this silver cloud,” said Jonathan Freiman, who represents a bipartisan coalition of organizations in the case.  “There’s a big difference between the government finally allowing Padilla to see his lawyers and acknowledging that Padilla has a right to see his lawyers during his imprisonment. Until the Supreme Court decides whether the President has the power to lock up American citizens in military prisons without charge and without any chance to talk to their lawyers, we’ll never know what the government might do tomorrow.”
The Federal Court of Appeals in New York released a groundbreaking decision in Padilla v. Rumsfeld several weeks ago, finding that the President had violated the Constitution by indefinitely detaining, without charge, an American citizen seized on American soil.  The Supreme Court is scheduled to review the government’s appeal of that decision this Friday, and the decision to allow Padilla to meet with his lawyers may be calculated to mute the force of Padilla’s arguments.
Whether it will is unclear.  The administration made a similar attempt in Hamdi v. Rumsfeld, another so-called “enemy combatant” case.  There, the government had won in the lower court, but it allowed Hamdi’s lawyers to meet with him just days before the Supreme Court was scheduled to consider the government’s request that it not hear Hamdi’s appeal.  The Court rebuffed the request, adding the Hamdi case to a docket that is rapidly filling with cases arising from the war on terror.
Jonathan Freiman is an attorney in the national appellate practice at Wiggin and Dana LLP and a Senior Fellow at the Schell Center for International Human Rights at Yale Law School.  He has been at the center of the major cases challenging the Administration’s most aggressive tactics in the war on terror, representing prominent former American prisoners of war in the Hamdi case, organizations led by the Cato Institute and the Lawyers Committee for Human Rights in the Padilla case, and an unprecedented coalition of religious, legal and human rights organizations in the Guantanamo Bay cases.  Freiman is available for further comment on the Padilla, Hamdi, or Guantanamo Bay cases.