U.S. Asks Supreme Court to Transfer Terror
Suspect
NY Times
By ERIC LICHTBLAU
December 28, 2005
WASHINGTON, Dec. 28 - The Bush administration asked the Supreme Court today
to allow for the immediate transfer of Jose Padilla from a military brig to
civilian custody to stand trial on terrorism charges, challenging an appellate
court ruling last week that blocked the move.
The Justice Department, in an unusually strong criticism of a lower court
that has historically been a staunch ally, said the earlier order blocking Mr.
Padilla's transfer to civilian custody represented an "unwarranted attack" on
presidential discretion.
In last week's ruling, the United States Court of Appeals for the Fourth
Circuit in Richmond, Va., refused to allow Mr. Padilla to be transferred to
civilian custody to face charges in Miami that he had conspired with Al Qaeda
to commit terror attacks abroad.
The appeals court said that the Bush administration, in charging Mr. Padilla
in criminal court in November after jailing him for more than three and a half
years as an enemy combatant without charges, gave the appearance that it was
trying to manipulate the court system to prevent the Supreme Court from hearing
the case. And it warned that the maneuvering could harm the administration's
credibility in the courts.
But Solicitor General Paul D. Clement, in the administration's new filing
today asking the Supreme Court to take up the custody issue, said the Fourth
Circuit's decision "defies both law and logic," and he noted that Mr. Padilla
himself had sought to be transferred to civilian custody.
In unusually caustic language, the solicitor general said that the Fourth
Circuit did not have the authority to "disregard a presidential directive." And
he said its decision blocking Mr. Padilla's transfer "is based on a
mischaracterization of events and an unwarranted attack on the exercise of
Executive discretion, and, if given effect, would raise profound
separation-of-powers concerns."
The Fourth Circuit is widely known as one of the most conservative appellate
courts in the country, and it has sided with the Bush administration on a
number of key issues involving matters of terrorism and national security.
Indeed, in a September ruling in the Padilla case, the Fourth Circuit
affirmed President Bush's power to hold Mr. Padilla, a former Chicago gang
member, as an enemy combatant tied to Al Qaeda. That opinion was written by
Judge Michael J. Luttig, whom President Bush considered for recent Supreme
Court vacancies, and it was Judge Luttig who also wrote last week's opinion
blocking Mr. Padilla's transfer.
"Nothing in this case surprises me anymore," Donna Newman, one of Mr.
Padilla's lawyer, said after the Justice Department's filing in the case today.
"This is an unusual turn of events for the Justice Department to come out
against the Fourth Circuit like this, because anybody who looks at precedent
would see the Fourth Circuit is a very pro-government circuit that generally
finds in favor of the government."
The Justice Department's application to the Supreme Court came a day after
lawyers for Mr. Padilla, in a filing of their own to the justices, argued that
President Bush had overstepped his authority in jailing their client as an
enemy combatant without charges.
In their filing, his lawyers also pointed to President Bush's authorization
of eavesdropping by the National Security Agency without warrants as another
sign of an "unchecked executive branch," raising constitutional questions that
they said the Supreme Court needed to resolve.
Mr. Padilla's lawyers argued that the Supreme Court should address the grave
issues raised in the case to "ensure the checks and balances that the Framers
erected to preserve America as a land of liberty under the rule of law."
Ms. Newman said she expected that the Supreme Court might decide at its Jan.
13 conference whether to hear Mr. Padilla's case, which the Bush administration
argues is now mute because of the pending criminal charges against him.
Mr. Padilla, a convert to Islam, traveled through the Middle East and was
arrested in May 2002 upon his return to the United States. The Bush
administration, in declaring him an enemy combatant and jailing him in a
military brig without access to a lawyer, initially accused him of plotting
with Al Qaeda to detonate a radiological "dirty bomb" on American streets and
plotting other attacks within the United States.
But in bringing criminal charges for the first time against Mr. Padilla last
month, the administration reversed course and accused him of working to support
violent jihad causes in Afghanistan and elsewhere overseas from 1993 through
2001. The criminal charges make no mention of the dirty bomb plot or other
American attacks.
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