WASHINGTON — U.S. citizens classified as enemy combatants should gain access to attorneys only after they have disclosed everything they know about terrorist operations, federal law enforcement officials said Tuesday.
Three senior Justice Department officials, briefing reporters on condition of anonymity, outlined the policy for the first time and said it is the proper way to balance national security and constitutional protections for people in government custody as part of the war on terror.
One of the officials said the goal never has been to deny counsel, only to delay it until interrogations are finished.
Two U.S. citizens are being held as enemy combatants: Yaser Esam Hamdi and Jose Padilla.
Critics say the policy gives the government too much leeway and treads on the constitutional right of a defendant to be granted quick access to an attorney and the courts. They note the government still is arguing strenuously in federal courts that it has an absolute right to deny access to lawyers for enemy combatants, including U.S. citizens, and that such a decision is not subject to review by judges.
"What we’re saying is that someone who’s arrested in the United States is not to be treated that way, and instead should be treated in the criminal justice system," said Timothy Edgar, legislative counsel for the American Civil Liberties Union.
Legal representation for those designated enemy combatants, especially the two Americans, is one of the most vexing issues tackled by the Bush administration since the Sept. 11, 2001, terror attacks.
An order by President Bush in November 2001 allows captives to be detained as enemy combatants if they were members of al-Qaida, engaged in or aided terrorism, or harbored terrorists.
Hamdi, a Louisiana native, was captured on the battlefield in Afghanistan and was transferred to the United States after officials discovered his citizenship by birth at the prison camp in Guantanamo Bay, Cuba.
Chicago-born Padilla, a former gang member, was arrested in May 2002 at Chicago’s O’Hare International Airport on a flight from Pakistan. He is suspected of plotting with al-Qaida to detonate a radioactive "dirty bomb." Padilla was designated an enemy combatant a month later.
Earlier this month, the Defense Department abruptly announced that Hamdi would have access to an attorney because he no longer had great value as an intelligence asset. Padilla, on the other hand, continues to sit in a Navy brig without a lawyer.
Padilla’s value as an intelligence source, one official said, "would potentially be hampered and jeopardized by access to counsel."
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