Presidential Powers

The White House was repeatedly warned by senior lawyers that it was facing a major legal setback if it persisted with claims that the president was empowered to indefinitely lock up U.S. citizens as "enemy combatants" without access to counsel or a right to trial. Those warnings were borne out Dec. 18 when a U.S. court of appeals panel in New York ruled that "dirty bomb" suspect Jose Padilla was being held unconstitutionally and should be released from a military brig. White House officials vowed to appeal. But some administration insiders said the fallout from the Padilla ruling could be far-reaching--and that it vindicated doubts expressed by some White House and Justice officials about the administration's tough stand. "This is worse than what we feared," says one who worked on the case.

Sources tell NEWSWEEK that debates within the administration over the Padilla case were far more intense than has been publicly acknowledged. Padilla, a onetime Chicago gang member who converted to Islam, was first arrested in May 2002 as he was returning to the United States from Pakistan. A month later, based on secret intelligence that he had been directed by Qaeda leaders to conduct surveillance for a possible radiological "dirty bomb" attack in D.C., Padilla was declared an "enemy combatant." He was sent to a military brig in Charleston, S.C. Neither family members nor his initial court-appointed lawyer has spoken to him since. Although Attorney General John Ashcroft first announced the decision, some top officials and White House lawyers later worried that such an assertion of power would never pass Supreme Court review. Among those who advised against the position, NEWSWEEK has learned, was Solicitor General Ted Olson, whose office was forced to defend the policy in court. In sometimes heated meetings last year, Olson and several White House lawyers pressed for a more pragmatic position that would have at least granted Padilla's lawyer limited access, such as being able to review government interrogation reports. But administration hard-liners, including Vice President Dick Cheney's chief counsel David Addington and then deputy White House counsel Timothy Flanigan, argued against any modification, urging that more suspects be designated enemy combatants.

The internal debates continued into this fall, when other top Justice officials suggested setting up a system to determine when an enemy combatant could be granted a right to a lawyer; the idea never got traction. Now, most officials expect the case to go to the Supreme Court, which is also expected to review the case of Yaser Hamdi, a U.S. citizen apprehended in Afghanistan who was declared an enemy combatant. Some Bushies fear that, as a result of the administration's unyielding stand, key aspects of the U.S. court of appeals' ruling on Padilla will ultimately be upheld--and thereby erode the president's "wartime" powers at a time when the Qaeda threat remains serious.