Padilla's Lawyers Suggest Indictment Helps Government Avoid Court Fight

By Fred Barbash
Washington Post Staff Writer
Tuesday, November 22, 2005; 2:00 PM

The indictment of Jose Padilla came days before the Bush administration was due to respond to his appeal to the Supreme Court of his lengthy detention, prompting his lawyers to suggest that the government is trying to avoid another potentially losing confrontation in the high court over its anti-terror detention policies.

Indeed, as the indictment was announced, administration lawyers notified Padilla's legal team that they now regard his Supreme Court challenge as moot, not requiring any Supreme Court intervention.

Attorney General Alberto Gonzales, who announced Padilla's indictment today, declined to comment on the Supreme Court case during his news conference. Gonzales was asked if the charges were related to Padilla's Supreme Court petition. He responded that "we are bringing this prosecution at this time because it is the appropriate thing to do."

Padilla, a U.S. citizen seized on U.S. soil, had asked the justices to consider the constitutionality of detaining him for 28 months without any charge being filed. Since he is now charged and is no longer a designated "enemy combatant," the government contends that there is nothing left to argue about.

Traditionally, such a situation usually results in the court declining to hear a case or dismissing it as moot. On some occasions, however, the court has gone ahead with a review on the grounds that a situation, while "evading review" for the time being, is "capable of repetition."

Jenny Martinez, a Stanford Law School professor who is helping to represent Padilla, said his lawyers will make that argument, based on the fact the government can return Padilla to enemy combatant status at any time, especially if it fails to get a conviction against him or gets a conviction but not a satisfactory sentence.

This is the second time the government has apparently acted to avoid appellate review in Padilla's case by doing something at the last minute. In December 2003, the government avoided a contest over Padilla's right to a lawyer by allowing him to have one after denying him counsel for more than a year.

Padilla's case has followed a complicated path, starting with his seizure by the government on May 8, 2002, as the so-called "dirty bomber." After being held in a civilian jail in New York, the government moved him to a military brig in South Carolina.

Thus, by the time his petition for relief, originally filed in New York, reached the Supreme Court, the justices sent it back without a ruling on the merits, saying he should have filed his papers against the military jailer in South Carolina, which he then did.

In September, the 4th U.S. Circuit Court of Appeals, reversing a lower court, held that Padilla's detention was a lawful exercise of presidential authority to indefinitely detain a U.S. citizen captured on American soil without any criminal charges. Such authority, it ruled is vital during wartime to protect the nation from terrorist attacks.

Padilla's challenge to that ruling is the case awaiting Supreme Court review. If the justices decline to hear his appeal and let stand the Fourth Circuit ruling, the government will be able to continue to argue that its position has passed constitutional muster.

His lawyers argue that Padilla's detention is unconstitutional under the court's previous decision in Hamdi v. Rumsfeld . In that 2004 case, the justices ruled that a U.S. citizen, Yaser Hamdi, captured on a battlefield has a right to contest his incarceration. Among the differences between the Padilla case and Hamdi's is that Padilla was arrested on U.S. soil, giving him an even better chance of prevailing at the high court, in the view of many legal experts.

"If I were the government, I would not have expected to win" in the Supreme Court, said Martinez. "I think the government is clearly trying to evade Supreme Court review."

© 2005 The Washington Post Company