WASHINGTON – Supreme Court (search) justices read the newspapers, and they cannot help but ponder powerful new allegations that the subject of one of their biggest cases this term was heavily involved in terrorist plots against U.S. civilians, lawyers say.
The Bush administration gave a detailed accounting Tuesday of the alleged terrorist connections and training of Jose Padilla (search), a New York-born former gang member and convert to Islam.
That information is not part of the Supreme Court case called Rumsfeld v. Padilla (search), in which the government wants the high court to sign off on Padilla's indefinite detention without charges or trial.
Similarly, the images of prisoner abuse at the U.S.-run Abu Ghraib prison in Iraq are not part of another important case this term testing the legal rights of detainees at another U.S.-operated prison camp at Guantanamo Bay, Cuba.
Both cases are tough calls for the court, which traditionally has sided with presidents in wartime examinations of power and civil liberties.
In both these pending cases, circumstances changed after the court heard arguments from the attorneys involved, and public opinion may have changed as well, lawyers said. And in both instances, the justices will not ignore the new information even if they do not address it in the eventual ruling, several lawyers said.
"The outside events have got to weigh very heavily on them," said Michael Greenberger, a former Clinton administration Justice Department official. "When all is said and done, they are human beings like the rest of us."
University of Virginia law professor Robert Turner gives the government the benefit of the doubt.
"I don't assume the administration is releasing this in the hopes of slipping into the Supreme Court by the side door," Turner said. "My guess is this is primarily aimed at informing the American people, reassuring people we're not taking a poor kid off the street and locking him up without reason."
The Supreme Court is deciding whether the war on terrorism gives the government power to seize Americans such as Padilla and hold them without charges for as long as it takes to ensure they are not a danger to the nation.
Padilla and another U.S. citizen, Yaser Esam Hamdi, are in military custody at a Navy brig in South Carolina. They have been interrogated repeatedly, and until recently were not allowed to meet with their lawyers.
The Bush administration contends that as "enemy combatants," the men are not entitled to the usual rights of criminal suspects, and that the president alone has authority to order their detention.
Deputy Attorney General James Comey said the Padilla allegations are not an attempt to influence the Supreme Court, and had no connection to criticism from some members of Congress and some administration officials that Attorney General John Ashcroft recently overstated the Al Qaeda threat.
Comey also said that the conditions of Padilla's detention and interrogation have yielded a wealth of valuable information about the plans and thinking of some of Al Qaeda's top leaders. Had Padilla been arrested and charged as an ordinary criminal suspect, his lawyer would have advised him to clam up, and Padilla might well have walked free, Comey said.
Some outside lawyers were skeptical of the government's motive in releasing the information on Padilla two years after his arrest as a suspected "dirty bomber."
"I see no substantive reason why they would announce that today," said Scott Silliman, director of Duke University's Center on Law, Ethics and National Security. "I think it is probably yet another attempt to put the most favorable face on the government's argument that is being considered by the Supreme Court."
Silliman and others noted that the detailed accounting must have taken months to assemble, and presumably could have been released earlier. The Abu Ghraib scandal has forced the administration to explain itself and answer critics more fully, human rights lawyer John Payton said.
"Abu Ghraib has changed the context and the urgency," Payton said.
One of Padilla's lawyers, Andrew Patel, characterized the information released by Comey on Tuesday as "an opening statement without a trial. We are in the same position we've been in for two years, where the government says bad things about Mr. Padilla and there's no forum for him to defend himself."
There will be no such opportunity at the Supreme Court, which will not determine Padilla's guilt or innocence.
Padilla may never have a civilian trial, Comey said. If he does, much of the information Comey detailed would probably be excluded. Padilla confessed to much of what Comey laid out, he said, and named names of fellow terrorists.
"I don't believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel," Comey said.
"The questioning of Jose Padilla ... was not undertaken to try and make a criminal case against Jose Padilla. It was done to find out the truth about what he knew about Al Qaeda and threats to the United States."