Case Against U.S. Citizen Jose Padilla

This is a partial transcript of Special Report with Brit Hume, December 1, that has been edited for clarity.

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BRIT HUME, HOST: Almost since the day it was passed, with overwhelming bipartisan support in Congress, the U.S. Patriot Act (search) has been under attack from critics as a virtual license for terrorist-hunting authorities to trample the rights of citizens.

But the case that has generated perhaps the most controversy involved powers not granted by the Patriot Act. The case of American citizen Jose Padilla (search), held without access to counsel in a military jail now for a year and a half on suspicion of involvement in a terrorist bomb plot.

And over the weekend, former Assistant Attorney General Viet Dinh, an architect of the Patriot Act was quoted in the Los Angeles Times, as saying he didn't think Padilla's imprisonment would stand up in court. Now that was news. And Viet Dinh joins me now to discuss the matter further.

Welcome.

VIET DINH, FMR. ASSISTANT ATTORNEY GENERAL: Thank you so much, Brit.

HUME: Now, why is it that you feel that the handling of -- the handling of Jose Padilla would not stand up in court?

VIET DINH: Well, there has been significant movement in the case.

HUME: Yes. But tell me what your original concerns were.

VIET DINH: Right. The original position of the government was that this person would have no access to counsel and no promise of any legal process.

HUME: Now, he was arrested in Chicago.

VIET DINH: He was arrested in Chicago.

HUME: Right. And he is an American.

VIET DINH: He is an American, initially arrested by the Department of Justice. And then after a week and a half, transferred to military detention under the authority of the Department of Defense.

HUME: So, now he has been held then ever since?

VIET DINH: He's been held in South Carolina.

HUME: And the suspicion is that he was involved in a bomb plot of some kind?

VIET DINH: Yes. The suspicion and the allegation, and indeed, the designation by the president himself contained information that he was involved in a very nefarious plot to detonate a dirty bomb -- a radioactive bomb somewhere in the United States. And I think that qualifies him, undoubtedly, as an unlawful enemy combatant. I think the president has great authority to designate persons as an enemy combatant. Certainly on the battlefield. And where the battlefield is one the terrorists choose that is the nation and civilians, then that power extends to that area.

The initial government position is that because this was in the president's authority as commander-in-chief, he is not entitled to any access to counsel, nor any legal process.

HUME: But what -- if this had happened overseas and he were an American citizen and the military had captured him, I assume there would be no issue here. Am I right about that?

VIET DINH: There would be no issue if he is captured overseas and kept overseas.

HUME: Right. But here he was captured within the United States and held within the United States, even though he'd been transferred to the custody of the Department of Defense, your belief is his constitutional rights may have been violated, correct?

VIET DINH: Well, the president has never said that the writ of habeas corpus, which is the technical term for the able to challenge government detention, has been suspended. So he has full access to the court in order to challenge...

HUME: To your knowledge, has he filed a writ of habeas corpus to try to get access to counsel?

VIET DINH: Yes. His attorney, Donna Newman in New York filed that writ that is now currently being litigated in the Court of Appeals in New York.

HUME: And the court of appeals has ruled how?

VIET DINH: It has not ruled and the...

HUME: Your expectation, though, it would be that it would rule against the government?

VIET DINH: Well, the key is that in oral argument about two weeks ago, since I made the speeches calling the government's position not supportable, the government has shifted significantly and says that it will provide legal access. It will provide access to counsel to Jose Padilla.

HUME: At what point?

VIET DINH: At a point in the near future. I think that significantly changes the case because it makes the access to the court now meaningful access. And I think that transforms...

HUME: Because he would have counsel?

VIET DINH: Exactly. And not only would he have counsel, but also will have the ability to communicate with his counsel so as to aid the legal challenge in court. I think the president's owed great deference as to what level of process that he gives. But I think that in order to make the access to the court meaningful, the access to the counsel is an integral part of that.

HUME: So your view would be the government is now on much, more firm footing legally?

VIET DINH: I think that by the shift in the position that makes their case sustainable, there is room for -- there is further room for them to move. I think that the case would be bulletproof if the Department of Defense would make some promise of a legal process. It does not have to be judicial; it can be military or executive.

HUME: So in other words, he would not simply be held there with access to counsel, but no sense of the process by which he will be tried or indicted or any of that?

VIET DINH: Exactly. Or he doesn't have to be indicted because he is a military detainee. But there has to be a process to determine the basic facts of his detention, whether or not he is indeed what the government says he is. He could be military, it can be executive in nature. But -- and I think that that would put the administration on solid legal footing.

HUME: Now, there was another man caught in the United States, when Yaser Hamdi (search) -- we don't have much time left. How does your thinking affect his particular case? What was he charged with, where was he caught and so forth?

VIET DINH: He was caught in Afghanistan. Then because he was a U.S. citizen, he was transferred to Norfolk, Virginia. I think his case is different in one respect, in that he was accused of being an enemy fighter on traditional battlefield outside the United States in Afghanistan.

His case is before the Supreme Court right now and the government is due to file its response on Wednesday. And I think a significant point there is that he is different from Jose Padilla in that he was captured on an enemy battlefield.

HUME: Now, there is a third category, of course, and that's all those people held at Guantanamo Bay, which is, what? It's outside the continental United States, obviously. But what about its standing in law?

VIET DINH: All those persons are non-U.S. citizens captured outside the United States, held outside the territory of the United States. The Supreme Court has agreed to hear the case to determine whether or not they should be treated as if they were in the United States territory.

HUME: Give me your guess on how the Hamdi case will come out and how the GITMO case will come out?

VIET DINH: I think the Supreme Court is likely to take the case either in Hamdi or Padilla. They present essentially the same issue. I do think in the GITMO case, the Court will either affirm, which is more likely because the courts below spoke as one voice, or reverse in a very, very narrow decision limited to the fact.

HUME: Well, we'll ask you back to explain it to us when it happens. Thank you very much Viet Dinh.

VIET DINH: Thank you very much, Brit.

HUME: Nice to have you.

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