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Court Bars Transfer of Padilla To Face New Terrorism Charges

By Jerry Markon
Washington Post Staff Writer
Thursday, December 22, 2005

A federal appeals court yesterday refused to authorize the transfer of "enemy combatant" Jose Padilla to face new criminal charges, issuing a strongly worded opinion rebuking the Bush administration and its handling of the high-profile terrorism case.

The same court that had granted the administration wide latitude in holding Padilla without charges or a court appearance now is suggesting that the detention was a mistake. As a result, the U.S. Court of Appeals for the 4th Circuit said prosecutors could not take custody of Padilla from the military and take him to Miami, where he now faces indictment on terrorism charges.

In issuing its denial, the court cited the government's changing rationale for Padilla's detention, questioning why it used one set of arguments before federal judges deciding whether it was legal for the military to hold Padilla and another set before the Miami grand jury.

Padilla, a U.S. citizen who was arrested in Chicago in 2002, initially was accused of plotting to detonate a radiological "dirty bomb," declared an enemy combatant and held for more than three years in Defense Department custody. But in the criminal charges brought last month, the government does not mention the alleged bomb plot or any attack in the United States.

The government's actions have left "the impression that Padilla may have been held for these years, even if justifiably, by mistake," the court wrote. That impression, the judges said, may hurt the government's "credibility before the courts."

Padilla, a former gang member, has been at the center of a heated battle over governmental powers that arose after the Sept. 11, 2001, terrorist attacks because he was imprisoned so long without the opportunity to challenge his detention.

Justice Department officials now must decide whether to defy the court and take Padilla before a federal judge in Miami. Tasia Scolinos, a department spokeswoman, said the government is "disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him." She said department lawyers are reviewing the order and "will continue to consider all options with respect to pursuing the criminal charges as expeditiously as possible."

In requesting the transfer to Justice Department custody, the government suggested that the 4th Circuit vacate its ruling allowing Padilla to be held as an enemy combatant. But the 4th Circuit yesterday also refused to lift the earlier decision and suggested that the Justice Department request was made to avoid further judicial scrutiny.

The judges said prosecutors had left "an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." They said they welcomed Supreme Court intervention because of the "enormous implications" of the Padilla case.

Some lawyers said high court involvement might be inevitable because it would be difficult for the administration to defy an appellate court and transfer Padilla at a time when it faces criticism over a secret domestic spying program and other parts of its counterterrorism efforts.

"They've been kind of beat up lately about the way they've conducted the war on terrorism," said Eric H. Holder Jr., who was deputy attorney general in the Clinton administration. "It's a difficult thing for them now to take another hit from the 4th Circuit, and then do something contrary to what that court says."

Although the Justice Department asked the 4th Circuit for permission to take custody of Padilla, the department maintained that it does not need that permission. Even the 4th Circuit acknowledged yesterday that the issue is "unclear."

Jonathan Freiman, a lawyer for Padilla, said only that the 4th Circuit opinion "speaks loudly for itself."

Legal experts said the decision showed that a previously friendly appellate court was now casting a more skeptical eye toward the Bush administration's terrorism arguments. The Richmond-based 4th Circuit has been the administration's venue of choice for several high-profile terrorism cases. It is widely considered the nation's most conservative appellate court, and the same three-judge panel that issued yesterday's ruling had earlier strongly backed the president's authority to detain Padilla without trial. Both decisions were written by Judge J. Michael Luttig, who was a leading contender to be nominated to the Supreme Court earlier this year.

"Obviously, the court feels very stung by being presented with what it thought to be a serious and heartfelt argument by the administration [to hold Padilla originally], only to learn it would turn on a dime," said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

Padilla was arrested at O'Hare International Airport in May 2002 and declared an enemy combatant by President Bush a month later. Padilla has been held in a U.S. naval brig since.

Attorneys for Padilla, joined by a host of civil liberties organizations, blasted the detention as illegal, but the 4th Circuit panel ruled in September that Bush had the authority to detain Padilla and that such power is essential to preventing terrorist strikes.

Last month, Padilla was indicted in Miami on federal charges of being part of a violent terrorism conspiracy rooted in North America but directed at sending money and recruits overseas to "murder, kidnap and maim." The indictment did not mention the dirty bomb or any plot to attack inside the U.S.

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