CHICAGO, June 10 (UPI) -- Human rights expert Douglass Cassel said Monday the federal government appears to be relying on a 60-year-old court case to justify holding Jose Padilla on suspicion he planned to explode a "dirty" bomb in the United States.
Padilla, 32, also known as Abdullah al Muhajir, has been in U.S. custody since his arrest Chicago's O'Hare International Airport on May 8. He is suspected of engaging in a conspiracy to obtain radioactive material and explode it with the aid of a conventional bomb.
Federal authorities have designated him as an "unlawful combatant" and turned him over to the military for detention.
The American Civil Liberties Union said the action belies President Bush's earlier assurance U.S. citizens would not be subjected to military jurisdiction.
Cassel, director of the Center for International Human Rights at Northwestern University, said Padilla's custody transfer from the Justice Department to detention by the military in South Carolina appears to be a "test run" to set him up for indefinite detention.
Padilla, a U.S. citizen who was born in the Brooklyn borough in New York and grew up in Chicago, had been returning to the United States from Pakistan when he was arrested. He is believed a member of the al Qaida militant group.
According to the FBI, Padilla has a criminal record dating back to 1985 when he was just 15. FBI spokesman David Brown said he was convicted in 1991 of obstruction of police and assault and served time in an Illinois prison.
FBI Director Robert Mueller said a conspiracy was in its very early stages and there is no evidence Padilla had acquired a dirty bomb. Nor was there evidence al Qaida had settled on a target.
"The Geneva Conventions provide that captured enemy combatants if they meet certain conditions ... can be treated as prisoners of war," Cassel said. "There is a traditional legal category that predates the Geneva Conventions designed to deal with enemy spies ... a category called unlawful combatants. Those types of people could be tried before a military commission, even if they were U.S. citizens."
Cassel cited a 1942 case involving eight German saboteurs, one of whom was a U.S. citizen. President Franklin Roosevelt ordered them tried by a military commission and the U.S. Supreme Court said it did not matter that one was a U.S. citizen because he was working for the German government.
"But that's very old law and lots of things have happened in the last 60 years," Cassel said. "It might not even be good law. But what the Supreme Court didn't say is that you could just lock them up and throw away the keys. There you had a recognized state as the enemy and sponsor of the saboteurs whereas here there is no state on the other side. Instead you've got something that looks more like organized crime.
"Why do Mafiosi get treated as criminals and on the other hand Mr. Padilla gets labeled as an unlawful combatant not entitled to a trial?"
The ACLU agreed.
"If a non-citizen like Zacarias Moussaoui (the man believed to be the 20th hijacker in the Sept. 11 attacks) can be tried in a regular court of law, surely a United States citizen can be afforded the same access to justice," ACLU Executive Director Anthony D. Romero said in a statement issued in New York.
"As we have seen in the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh, our courts are perfectly capable of meting out justice even in the most horrific of circumstances. The government has failed to justify why our traditional system of American justice should not apply in the case of Jose Padilla."
Cassel speculated Attorney General John Ashcroft decided to transfer Padilla to military custody and announce the investigation Monday because a federal judge had given the Justice Department 30 days to decide whether to press charges. He said there likely was an "ex parte" proceeding at which Padilla had no legal representation.
Had a defense lawyer been involved, he said, the first action would likely have been a motion demanding charges be preferred or Padilla released. The matter likely would have worked its way up to the Supreme Court, which, based on past precedent, likely would have ordered action to be taken within a specified period of time.
Padilla is being held at the Naval Consolidated Brig in Charleston, S.C.
