U.S. Defends Conduct in Padilla Case

By Jerry Markon
Washington Post Staff Writer
Thursday, December 29, 2005

A federal appeals court infringed on President Bush's authority to run the war on terror when it refused to let prosecutors take custody of "enemy combatant" Jose Padilla, the Justice Department said yesterday, as it urged the U.S. Supreme Court to intervene.

The sharply worded Justice Department filing was the latest salvo in an increasingly contentious battle over Padilla, a U.S. citizen arrested in Chicago in 2002 and initially accused of plotting to detonate a radiological "dirty bomb." Padilla was held for more than three years by the military before he was indicted last month in Miami on separate criminal terrorism charges.

The U.S. Court of Appeals for the 4th Circuit refused last week to allow prosecutors to take custody of Padilla from the military and rebuked the Bush administration for its handling of the high-profile case. The Bush administration took strong issue yesterday with the Richmond-based court's decision and appealed it to the Supreme Court.

It was another remarkable turn in Padilla's case, which has evolved into a legal spat between the executive and judicial branches of government. The dispute is especially unusual because it involves the 4th Circuit, which has been the administration's venue of choice for high-profile terrorism cases since the Sept. 11, 2001, terrorist attacks.

The 4th Circuit has given the government extraordinary latitude on national security matters, ruling for prosecutors in the cases of Sept. 11 conspirator Zacarias Moussaoui and Yaser Esam Hamdi. Hamdi and Padilla are the two U.S. citizens held as enemy combatants as part of the government's campaign against terror since Sept. 11.

The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla's incarceration and engaged in "an unwarranted attack on the exercise of Executive discretion." Prosecutors accused the court of going so far as to "usurp" Bush's authority as the nation's commander-in-chief and his government's "prosecutorial discretion."

In Padilla's case, the same three-judge panel that is now drawing the government's ire strongly backed the president's authority to hold Padilla without charges or trial in an earlier ruling. That decision, like the one refusing to authorize Padilla's transfer, was written by Judge J. Michael Luttig, who was a contender to be nominated by Bush to the Supreme Court this year.

Chief Justice John G. Roberts is the Supreme Court justice who oversees cases from the 4th Circuit, but it was unclear yesterday whether Roberts would rule himself on the government's request for Padilla's transfer. The full court is considering whether to take up the merits of Padilla's detention by the military.

Padilla, a former gang member, was arrested at O'Hare International Airport in May 2002 and declared an enemy combatant by Bush a month later. Padilla has been held in a U.S. Navy brig, without charges or trial, ever since.

Attorneys for Padilla and civil liberties organizations took up his cause, saying the government could not indefinitely detain U.S. citizens captured on American soil. 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.

In its ruling last week, the 4th Circuit questioned the government's changing rationale for Padilla's detention since the September decision, because the criminal charges do not mention a dirty bomb plot or any attack inside the United States. The court said prosecutors had left the appearance that they were trying to avoid Supreme Court review of Padilla's case and suggested that Padilla might have been "held for these years, even if justifiably, by mistake."

The charges in Miami accuse Padilla 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." If convicted, he faces up to life in prison.

Yesterday, prosecutors denied any attempt to avoid the Supreme Court and said they had narrowed the charges against Padilla because elaborating on the original allegations would compromise intelligence "sources or methods."

"There is nothing remotely sinister about the government's effort to pursue criminal charges that minimize evidentiary complications," the brief said, adding that "there is no basis for questioning the good faith of the government in moving forward with the indictment."

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