'Dirty Bomber' Case Divides Conservative Groups

By David Thibault | July 7, 2008 | 8:21 PM EDT

(CNSNews.com) - The U.S. Supreme Court Tuesday began hearing arguments over whether so-called "enemy combatants" in the war on terrorism should be afforded access to the American justice system.

Conservative groups are split over at least one of the cases coming before the high court -- the one involving Jose Padilla, the alleged "dirty bomber." The Virginia-based Rutherford Institute and the Washington, D.C.-based American Center for Law and Justice each cite the Constitution in defense of their opinions.

Tuesday's arguments before the Supreme Court involved the 650 men, most of them captured in Afghanistan or Pakistan, who are currently being held at the Guantanamo Bay Naval Base in Cuba. Next week, the court will deal with two cases, including Padilla's, involving U.S. citizens who were detained for alleged terrorist activities.

Padilla was arrested in Chicago two years ago after arriving on a flight from Pakistan. Government prosecutors say he had close ties with Osama bin Laden's al Qaeda terror network and was planning to explode a radioactive "dirty bomb" somewhere in the U.S.

However, Padilla, who is being held in a military brig in South Carolina, has never been charged with a crime and was reportedly only granted access to an attorney earlier this year.

Last December the 2nd U.S. Circuit Court of Appeals in New York City ruled that the military could not hold Padilla as an enemy combatant without approval from Congress. The case was then appealed to the Supreme Court.

The Rutherford Institute has joined the liberal group People for the American Way in taking up Padilla's cause, arguing that the Sixth Amendment to the Constitution, which guarantees "the right to a speedy and public trial," allows a defendant to be informed of the charges against him and promises legal assistance, is more important than the government's tactics in the war on terrorism.

"With Padilla, it's a real simple issue ... It's the Sixth Amendment that guarantees that an American citizen can see a lawyer," said Rutherford Institute president John W. Whitehead. Although Padilla was granted a lawyer earlier this year, Whitehead is using the case to complain about the government's delay in doing so.

"Timothy McVeigh, the worst mass murderer in the history of this country, got to see a lawyer," Whitehead said. As for Padilla, "we're not saying, 'let the guy go.' He may have a dirty bomb. But I don't know," Whitehead added.

But the American Center for Law and Justice cites the Constitution's separation of powers clause for backing the Bush administration's handling of the issue. Enemy combatants should be the responsibility of the president as commander in chief of the military and not the courts, according to ACLJ chief counsel Jay Sekulow, who admits he's concerned about how the Supreme Court will rule.

"It is troubling that a number of justices may want to interject the judiciary into military operations and usurp the president's constitutional authority in matters of war," Sekulow stated in a press release.

"Subjecting military decisions involving the war on terrorism to the federal courts ... would weaken the Constitution and make it much more difficult to wage an effective war to protect Americans from further acts of terrorism," Sekulow added.

Whitehead said even Osama bin Laden should get a lawyer if he's captured. Saddam Hussein, who has already been captured, is another good example, Whitehead said.

"It's the guy we just dumped ... Saddam, who would say they can't see a lawyer. I think Americans should go out of their way to say, 'yeah, we really believe in rights and liberty," Whitehead told CNSNews.com .

"We don't want to turn into a bunch of vigilantes and take people out and string them up. And the only way that you can prevent that is to make sure they have a lawyer and access to the justice system," Whitehead added.

But Sekulow argues that the detainees "are not criminal suspects," and should not be treated like criminal suspects.

Instead, according to Sekulow, "they are enemy combatants captured during the ongoing war on terrorism. Their detention is preventive -- to ensure that [the suspects] do not again take up arms against the United States forces, not punitive."

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