High Court Urged to Hear Padilla Case

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By Jerry Markon
Washington Post Staff Writer
Wednesday, December 28, 2005

Attorneys for "enemy combatant" Jose Padilla yesterday urged the U.S. Supreme Court to take up his case, saying the government's actions in detaining Padilla without charges for more than three years "highlight the danger of an unchecked Executive Branch.''

The brief was the first time Padilla's attorneys have addressed the high court since he was indicted on terrorism charges by a federal grand jury in Miami. Padilla, a U.S. citizen arrested in Chicago in 2002, initially was accused of plotting to detonate a radiological "dirty bomb," declared an enemy combatant by President Bush and held for more than three years in Defense Department custody. He was indicted last month on criminal charges that do not mention the alleged bomb plot or any attack in the United States.

Padilla is asking the Supreme Court to rule on his initial designation as a combatant, and government attorneys have said his challenge to presidential authority is irrelevant now that he has been indicted. But yesterday, Padilla's attorneys said the indictment is all the more reason for the court to hear the case.

"Far from making the case less worthy of review, the government's actions highlight the need for this Court . . . to preserve the vital checks and balances that the Framers intended," wrote the attorneys, who accused the Justice Department of seeking to avoid Supreme Court review of Padilla and other cases involving the treatment of detainees in the war on terrorism.

In doing so, the attorneys echoed the argument made by the U.S. Court of Appeals for the 4th Circuit, which last week also said that prosecutors appeared to be trying to avoid a high-court decision on Padilla. The Richmond-based 4th Circuit rebuked the Bush administration's handling of the case and refused to authorize Padilla's transfer from the military to Miami to face the new charges.

The 4th Circuit decision left the Justice Department with the choice of whether or not to defy the court and take Padilla before a federal judge in Miami. Law enforcement sources said no decision has been made, and the matter may be postponed until the Supreme Court decides whether to take Padilla's case. The court is expected to make that decision in mid-January.

Bryan Sierra, a Justice Department spokesman, yesterday declined to comment on Padilla's brief, which is the last scheduled brief from either side before the Supreme Court review.

Padilla, a former gang member, was arrested at O'Hare International Airport in May 2002 and declared an enemy combatant a month later. Padilla has been held in a U.S. Navy brig since.

Padilla 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.

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


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