Daschle’s Words Aid Padilla

The disclosure by a former Senate majority leader that President Bush sought and failed to receive broad authority from Congress to pursue the war on terror on American soil could undercut the government’s legal position in ongoing cases involving alleged enemy combatants held in military custody.The former senator, Thomas Daschle, said last week that days after the September 11, 2001, terrorist attacks, as Congress prepared to pass a resolution granting Mr. Bush permission to use “all necessary and appropriate force against those nations, organizations or persons” involved in the strikes, the White House asked to add a reference extending the president’s use-of-force authority “in the United States.” Mr. Daschle said he and Senator Lott of Mississippi, who was then the minority leader, turned down the White House’s request. The measure passed by Congress and signed by Mr. Bush does not contain the reference he is said to have sought.Mr. Daschle, who disclosed the episode in an op-ed piece in the Washington Post, said he was prompted to do so by the recent controversy over surveillance by the National Security Agency of overseas phone calls by Americans and by White House claims that the use-of-force resolution authorized such spying.“Both the attorney general and president cited this resolution as authority to spy on U.S. citizens,” Mr. Daschle said yesterday in an interview with The New York Sun. “I thought, ‘how ironic.’ We were specifically asked to provide it to them and didn’t.”Whatever its impact on the domestic surveillance controversy, the ex-senator’s description of the previously unknown rebuff of the White House immediately caught the attention of lawyers working for the release of alleged Al Qaeda prisoners detained by the American military in this country, but outside the traditional criminal justice system.“I actually was sitting in my office when it came out in the Post, and somebody called and said, ‘You’ve got to see this,'” a Manhattan attorney, Andrew Patel, said. Mr. Patel is a member of the legal team representing Jose Padilla, an American who was arrested at a Chicago airport in 2002 and later confined to a military brig in South Carolina after Mr. Bush designated him as an enemy combatant.Padilla’s attorneys have a brief due at the Supreme Court today. One of the lawyers involved said the brief was sent out for printing last week and it’s unclear whether it can be revised to take advantage of the new disclosure about the legislative maneuvering.A law professor at Georgetown University who is a vocal critic of the government’s handling of the enemy-combatant cases, David Cole, said the Justice Department’s position that the use-of-force resolution was intended to apply domestically is untenable in light of the legislative history that Mr. Daschle disclosed. “It suggests that Congress did not intend the commander-in-chief power to be exercised within the United States, but only upon the battlefield abroad,” Mr. Cole said. “I think it raises serious questions about the administration’s arguments.”An attorney representing a Qatari man who was declared an enemy combatant by Mr. Bush in 2003, Ali Saleh Al-Marri, said the early rejection of Mr. Bush’s domestic authority could bolster Mr. Al-Marri’s legal challenge, which is pending in a federal court in South Carolina. “Anything that sheds light on the fact that Congress viewed it as a limited power and limited it, that helps me,” the lawyer, Lawrence Lustberg, of Newark, N.J., said. “That’s going to be a critical legal issue for all of us.”A White House spokesman, Trent Duffy, said yesterday that he could not comment on Mr. Daschle’s description of the discussions surrounding the use-of-force resolution. A spokeswoman for Senator Lott of Mississippi, who was the minority leader at the time, said he was with family for the week and not available for an interview.Some supporters of the administration’s legal position said Mr. Daschle’s disclosure was unlikely to change the courts’ interpretation of Mr. Bush’s power. An attorney with the conservative Washington Legal Foundation, Richard Samp, said the news was likely to have “very little” impact. He said that the only logical reading of the use-of-force resolution was to permit Mr. Bush to act against Al Qaeda operatives anywhere in the world. “I don’t think anyone can plausibly say they really did intend to allow Americans to be captured overseas but not here in the U.S.,” Mr. Samp said.Attorneys on both sides of the debate noted that many of the Supreme Court justices are skeptical of efforts to divine the intent of legislation from lawmakers’ statements. “People like Scalia would give the back of their hand to a legislative history argument like that,” Mr. Samp said.It is unclear whether there is any documentation of the White House’s rejected proposal, which came at the last minute.“I’d say a half-hour before the vote, they contacted Senator Lott’s offices and Senator Lott’s staff and asked whether we could do one more thing and include ‘in the United States’ in the draft,” Mr. Daschle said yesterday. “We decided we couldn’t. We just couldn’t do that.”Mr. Daschle noted that it was reported at the time that the White House initially sought broad language that allowed Mr. Bush to “deter and pre-empt” future terrorist acts, but that a bipartisan group of senators insisted on something more specifically tied to September 11.Mr. Daschle, a Democrat who was unseated in 2004, did not answer directly when asked why he didn’t disclose the request for domestic authority earlier.“I have considered mentioning it on occasion in the past,” he said. “I concluded it was really important to talk about it now.”The impact of Mr. Daschle’s disclosure on Padilla is particularly difficult to predict, in part because the government’s proceedings against him are in some disarray. In September, a panel of the 4th Circuit Court of Appeals issued a sweeping opinion upholding Mr. Bush’s authority to detain Padilla without charges. However, in November, the Justice Department brought separate criminal charges against Padilla. It then moved to withdraw the appeals court’s opinion, mooting a pending Supreme Court petition.The author of the appeals court’s opinion, Judge J. Michael Luttig, took umbrage at the Justice Department’s effort to abandon the “enemy combatant” litigation. Earlier this month, the judge, who is usually a staunch supporter of broad executive authority, rebuked the department for its tactics and voted with his colleagues to leave the opinion in place.

Daschle’s Words Aid Padilla

Daschle’s Words Aid Padilla

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