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Padilla Lawyers Urge Supreme Court to Block Transfer
By NEIL A. LEWIS
12/31/05 "New
York Times" -- -- WASHINGTON, Dec. 30 - Lawyers for
Jose Padilla told the Supreme Court on Friday that it should not
grant the government's emergency request to have him transferred
from a military brig to civilian custody to face terrorism charges
in a civil court.
The lawyers acknowledged that Mr. Padilla would prefer to be in
civilian custody eventually. But they said it appeared that the only
reason for the government's rush to move him was to bolster the
administration's efforts to discourage the Supreme Court from
reviewing the crucial underlying issue of whether President Bush had
the authority to detain Mr. Padilla, an American citizen, as an
enemy combatant for more than three years.
"The government had the power to transfer Padilla from physical
military custody for more than three years, yet only now does it
deem swift transfer imperative," Mr. Padilla's lawyers argued in
their brief filed Friday.
They noted that the justices are scheduled to consider whether to
review Mr. Padilla's case at their private conference on Jan. 13.
After that, the lawyers said, it would be acceptable to move Mr.
Padilla.
When Mr. Padilla (pronounced puh-DILL-ah) was first arrested in
Chicago at O'Hare Airport in May 2002, the authorities said he was
considering a plot to explode a radioactive "dirty bomb" in some
American city. But in the criminal indictment issued in November,
the government made no mention of the dirty bomb plot and instead
charged him with fighting against American forces alongside members
of Al Qaeda in Afghanistan.
The issue of Mr. Padilla's transfer is the latest development in
what has become a complicated and extraordinary legal battle, not
only between the government and Mr. Padilla, but also between the
Justice Department and a federal appeals court that has usually been
a reliable supporter of Mr. Bush's authority in the fight against
terrorism.
A three-judge panel of the United States Court of Appeals for the
Fourth Circuit provided Mr. Bush with a sweeping victory in
September, saying he had the power to detain Mr. Padilla, a former
Chicago gang member who allied himself with radical Islamists, as an
enemy combatant.
But the Bush administration said in November that it no longer
needed that authority because it had decided to charge Mr. Padilla
in a civilian court. In addition, the Justice Department urged the
Supreme Court to drop its review of the power of Mr. Bush to declare
a citizen an enemy combatant, saying the Padilla case was now moot.
The appeals panel refused to agree to transfer Mr. Padilla from
military custody to civilian.
Judge J. Michael Luttig wrote in the opinion declining the transfer
that the administration appeared to be trying to manipulate the case
to avoid a Supreme Court review of the September ruling. Judge
Luttig also warned that the administration's behavior in the case
could jeopardize its credibility before the courts in other
terrorism cases.
The Justice Department, in a strongly worded application to the
Supreme Court earlier this week, said the appeals court panel had
overstepped its bounds in denying Mr. Bush's request to transfer Mr.
Padilla and asked the justices to order an immediate transfer. The
department asserted that Mr. Padilla was agreeable to the transfer.
On Friday, his lawyers made it clear that they felt the government
mischaracterized their views regarding the transfer.
Copyright 2005The New York Times Company
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