Supreme Court Is Asked to Rule on Terror Trial


12/29/05 "
New York Times" -- -- WASHINGTON, Dec. 28 - The Bush administration asked the Supreme Court on Wednesday to allow for the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, a move that came in response to an appellate court ruling last week that blocked the transfer.

In an unusually strong criticism of a lower court that has historically been a staunch ally, the Justice Department 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 terrorist 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 of 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 Wednesday 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 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 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 J. Michael Luttig, whom Mr. 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 lawyers, said after the Justice Department's filing in the case on Wednesday. "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, argued that President Bush had overstepped his authority in jailing their client as an enemy combatant without charges.

In their filing, Mr. Padilla's lawyers also pointed to Mr. 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 moot 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 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.

Copyright 2005The New York Times Company

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