by Los Angels Times –

(November 30, 2003) — A chief architect of the USA Patriot Act and a former top assistant to Attorney General John Ashcroft are voicing concern about aspects of the Bush administration’s anti-terrorism policy, the LOS ANGELES TIMES reported on Sunday.

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 terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks, Dinh has steadfastly defended the Justice Department’s anti-terrorism efforts against charges that they have led to civil-rights abuses of immigrants and others.

In an interview, Dinh, now a professor at Georgetown University Law Center, said 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 came to the conclusion that 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.

In the interview, Dinh said he believed the president had the unquestioned authority to detain persons 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.”