Anti-terrorism law creators voice concern over Patriot Act

By Richard B. Schmitt
Los Angeles Times

	Viet Dinh
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At issue is the government's power to designate and detain "enemy combatants," in particular in the case of "dirty-bomb" plot suspect Jose Padilla, the New York-born former gang member who was picked up at a Chicago airport 18 months ago by the FBI and locked in a military brig without access to a lawyer.

Civil-liberties groups and others contend that Padilla, as an American citizen arrested in the United States, is being denied due process of law under the Constitution.

Viet Dinh, who until May headed up the Justice Department's Office of Legal Policy, said in a series of recent speeches and in an interview with the Los Angeles Times that he thinks the government's detention of Padilla is flawed and unlikely to survive court review.

The principal intellectual force behind the Patriot Act — the anti-terrorism law enacted by Congress after the Sept. 11, 2001, attacks — Dinh has steadfastly defended the Justice Department against charges that the act has led to civil-rights abuses. While the Patriot Act does not speak to the issue of enemy combatants, his remarks still caught some observers by surprise.

In an interview, Dinh, now a professor at Georgetown University Law Center, said that the Padilla case was not within his line of authority when he was in the department, but that he began to think about the issue after leaving the government and concluded the administration's case was "unsustainable."

Another top former Justice Department official, Michael Chertoff, who headed the department's criminal division, has said he believed the government should reconsider how it goes about designating enemy combatants.

"Two years into the war on terror, it is time to move beyond case-by-case development," Chertoff said, according to an excerpt from a speech he gave in October at the University of North Carolina Law School.

"We need to debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said.

Chertoff, now a federal appeals court judge, also mentioned at a judicial conference in Philadelphia last month the need to re-examine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."

Mark Corallo, a Justice Department spokesman, declined to comment on the remarks by the former officials, noting that the Padilla case is pending in court. The department has staunchly defended its anti-terrorism record and its use of the tools in the Patriot Act, portions of which have been attacked as an abuse of government power by groups as diverse as the American Civil Liberties Union and the American Conservative Union.

In the interview, Dinh said he thought the president had the unquestioned authority to detain people during wartime, even those captured on "untraditional battlefields," including on American soil. He also said the president should be given flexibility in selecting the forum and circumstances — such as a military tribunal or an administrative hearing — in which the person designated an enemy combatant can confront the charges against him.

The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.

"The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to," Dinh said.

"But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated."

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