Appeals Court Balks at Approving Padilla Plan

By Jerry Markon
Washington Post Staff Writer
Thursday, December 1, 2005

The military imprisoned Jose Padilla without charges or a trial for more than three years, accusing him of plotting to detonate a radiological "dirty bomb" and conspiring to blow up apartment buildings in the United States.

Last week, a federal grand jury indicted Padilla on terrorism charges without mentioning the bombing plots.

Yesterday, a federal appeals court ordered the government to explain why.

The Richmond-based U.S. Court of Appeals for the 4th Circuit declined to authorize Padilla's transfer from military to Justice Department custody until the government elaborates on "the different facts that were alleged by the President to warrant Padilla's military detention" as compared with "the alleged facts on which Padilla has now been indicted."

In a brief order, the court indicated that it could seek to block the transfer entirely if a three-judge panel is not satisfied with the government's answers.

The court also said it might vacate its earlier decision that affirmed the president's power to detain Padilla as an "enemy combatant" in the first place, which would be a blow to the Bush administration as it continues looking for terrorists.

Padilla, a former gang member who has been at the center of a fierce political and legal struggle over governmental powers since the Sept. 11, 2001, terror attacks, was arrested in Chicago in 2002 and declared a combatant by President Bush a month later. Padilla has been held in a U.S. naval brig since.

Legal experts said it was hard to assess the significance of yesterday's order because much remains uncertain. If the 4th Circuit blocks Padilla's transfer to the Justice Department, that could set up a showdown between the executive and judicial branches.

The court also could take the rare step of withdrawing the opinion from September that backed the president's power to indefinitely detain Padilla -- a U.S. citizen captured in the United States -- without any criminal charges. That would deprive the government of a legal precedent it has hailed as vital to fighting terrorism.

At the very least, said Carl Tobias, a law professor at the University of Richmond, "the judges seem to be concerned about the government's change of position and want some explanation. You can see a suggestion of discomfort, or some unhappiness with the government."

Bryan Sierra, a Justice Department spokesman, said the department "intends to comply fully with the 4th Circuit's order" and would not comment further.

Jonathan Freiman, an attorney for Padilla, said he was "disappointed that Mr. Padilla's transfer to the civilian justice system has been delayed. We've been asking for 3 1/2 years for him to be charged with a crime and tried before a jury of his peers. We think that's the birthright of every American citizen."


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