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Justices Order Padilla Terror Case Moved to Civilian Court
Washington Post
By Jerry Markon
Washington Post Staff Writer
Thursday, January 5, 2006; Page A01

The U.S. Supreme Court allowed federal prosecutors yesterday to take over the case of "enemy combatant" Jose Padilla so he could face criminal terrorism charges, overruling a lower court and ending an unusual battle between the executive and judicial branches.

In a one-page order, the justices authorized Padilla's transfer from a Navy brig to Justice Department custody. He will be brought before a federal judge in Miami.

The Bush administration had requested the transfer, and government officials said they were pleased with the court's order. But yesterday's decision did not settle the larger issues raised by the Padilla case, including whether a U.S. citizen could be held in military custody without charges.

Still, the order marked a major step in the odyssey of Padilla, whose arrest in Chicago in 2002 triggered a legal and philosophical battle over the government's power to detain Americans captured in this country. He was introduced to the public as a shadowy former gang member who converted to Islam and stood accused by top federal officials of plotting to detonate a radiological "dirty bomb." He was locked in the brig for more than three years. For much of that time, Padilla had no access to a lawyer, and he has never appeared in court to fight his detention.

Now, the man whose face is known only from one old photo shown repeatedly on television and in newspapers will appear in a public courtroom in a case that has come to symbolize many of the conflicting arguments over the Bush administration's approach to fighting terrorism.

"He's been a figure of mystery. His status was semi-covert before," said Paul Rothstein, a law professor at Georgetown University Law Center who teaches national security. "A much greater segment of the public will now be aware of him."

The Supreme Court order concluded the latest dispute over Padilla's status, one that began when he was indicted in Miami in late November. The U.S. Court of Appeals for the 4th Circuit rejected his transfer from military to Justice Department custody and rebuked the administration for its handling of the case.

Justice Department attorneys responded by saying the court had overstepped its bounds and infringed on President Bush's ability to run the war on terror. The accusation was striking because the Richmond-based 4th Circuit is considered the most conservative appellate court in the country, and it has sided with the Bush administration in this and other high-profile terrorism cases.

Yesterday's order did not offer any rationale. The court said it would decide "in due course" whether to take up Padilla's detention by the military. Attorneys for Padilla are urging the court to review the matter, but the Justice Department says the issue is moot because Padilla has been charged in the criminal justice system. Lawyers involved in the case have said they expect the court to make a decision this month.

It was unclear late yesterday when Padilla would be flown from South Carolina to Miami and when he would make his first court appearance. The U.S. Marshals Service, which transfers federal prisoners, indicated the move would not be immediate.

"It's not an automatic thing," said Mavis Dezulovich, a Marshals Service spokeswoman. "There are some legal issues and paperwork that have to be set in place before a transfer can occur."

Security also is a factor. Dezulovich said the nature of the allegations against Padilla, and the publicity surrounding the case, "would dictate that it would take some time to get things in place."

John Nowacki, a Justice Department spokesman, said prosecutors are "pleased with the decision allowing us to move forward with the criminal case."

Jonathan Freiman, an attorney for Padilla, said he is "glad Padilla will be able to defend himself before a jury of his peers, like every other American."
        

Padilla was arrested at O'Hare International Airport in May 2002. Then-Attorney General John D. Ashcroft broke away from meetings in Moscow to announce that the United States had "disrupted an unfolding terrorist plot" that could have caused "mass death and injury." Padilla was declared an enemy combatant by Bush a month later and has been held in a Navy brig, without charges or trial, ever since.

Attorneys for Padilla and civil liberties organizations called the detention illegal, saying it could lead to almost any U.S. citizen being thrown in jail. Prosecutors said that the Sept. 11, 2001, attacks had made U.S. soil a battlefield and that the president needed the power to detain U.S. citizens to prevent attacks.

A three-judge 4th Circuit panel sided with the government in September, ruling that Bush had the authority to indefinitely detain Padilla.

The government had originally described Padilla as plotting with al Qaeda to detonate the dirty bomb and later focused on allegations that he planned to blow up apartment buildings by filling them with gas.

But the criminal charges never mentioned the bomb plot or any attack in the United States. The indictment accuses 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."

The changing rationale for Padilla's detention, in part, triggered the extraordinary criticism from the 4th Circuit last month.

In declining to authorize Padilla's transfer, the appellate court suggested that the government may have been trying to avoid a Supreme Court review of Padilla's military detention and that the detention may have been a mistake.

Staff writer Charles Lane contributed to this report.

Commentary:
The new charges against Padilla are pre 911. In other words, the government lied under oath when they charged him, kept him in secret prisons, without a lawyer or trial so he couldn't defend himself, was denied the right of Habeas Corpus by the US Supreme Court and other courts and now the government says all the original charges against him were mistakes but they have new charges that are many years old. If the Supreme Court has any sanity (and it lost it a long time ago), it'll dismiss this case. The man's already spent three and a half years in jail without a trial. That's long enough.