Supreme Court Is Asked to Rule on Terror Trial
By ERIC LICHTBLAU
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
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
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
"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 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
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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