Terror case tests reach of federal power

The US is playing a shell game with one of the nation's most important - and perhaps dangerous - prisoners.

Through aggressive legal tactics, the government has put alleged "dirty bomb" conspirator Jose Padilla through an odyssey unprecedented in American jurisprudence.

In the 3-1/2 years since his arrest at Chicago's O'Hare International Airport, the government has repeatedly asserted unilateral power in a way that has undercut Mr. Padilla's ability to defend himself.

In addition, Justice Department lawyers have used that same unilateral power to help insulate their actions from the scrutiny of the judiciary - including the US Supreme Court.

Critics see such tactics as a troubling symptom of the Bush adminstration's expansive view of presidential power. Supporters say the tactics are designed more to help win the war on terror than to win court battles.

That government strategy has left unresolved a string of legal challenges raising some of the most fundamental issues of US constitutional law. They include the president's authority to name US citizens as "enemy combatants" in the war on terror and what rights, if any, protect such citizens.

"At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens in assessing the Padilla case in 2004. "If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Justice Stevens wrote those words in dissent of a 5-4 decision by the high court to dismiss Padilla's case on jurisdictional grounds rather than confronting the central constitutional issues. Now, 18 months later, Padilla's case is back before the Supreme Court. The justices are being asked to consider the merits of Padilla's arguments and, by extension, to judge the legality of the administration's actions. Many court watchers believe at least five of the justices are prepared to rule in Padilla's favor should the high court agree to take up his case.

Concerned about that possibility, the government is urging the justices not to hear the Padilla case. But the Bush administration is exerting its unilateral power in an apparent attempt to render Padilla's Supreme Court challenge moot. Two days before the government's brief was due at the Supreme Court, the administration announced in a surprise move that it was ending its indefinite detention of Padilla as an enemy combatant. Instead, he would be relocated to a Miami lockup and charged for allegedly providing material support to terror groups.

Lawyers for the government and its supporters defend these tactics as necessary innovations in response to an ever-changing war on terror being waged by a ruthless enemy plotting mass murder. Other analysts see it more as a matter of convenience.

Prior to his designation as a criminal, Padilla had earned a unique status among those imprisoned by the government. He was the first American citizen seized on American soil and held in indefinite detention as an "enemy combatant." Government officials had said he was a trained member of Al Qaeda who agreed to return to the US to blow up apartment buildings and detonate a radiological device in a major city.

Administration lawyers cited national security and safety concerns as justification for the extraordinary security measures taken against Padilla. But the Miami charges include no mention of dirty bombs or apartment building plots.

Juliette Kayyem, a terrorism and security expert at Harvard's Kennedy School of Government, says the Miami charges appear to be an effort to set the stage for a plea deal that will help the government resolve the case without messy court hearings that might reveal sources as well as procedures.

"God knows what happened to him during his detention and what kind of interrogation processes he was put through, and they don't want that to come out," she says.

At the same time the administration wants to avoid a possible defeat at the Supreme Court. "Basically, they need this case to go away," Ms. Kayyem says.

Lawyers for Padilla say the new criminal charges do not render his case moot. Should he refuse a plea deal and/or be acquitted at trial in Miami there is nothing to prevent the government from placing him back in military custody as an enemy combatant, they say.

The Miami charges are only the most recent effort by the government to use presidential authority in the war on terror to try to evade judicial review of its actions, legal analysts say.

Government lawyers did it by moving Padilla into military custody on the eve of a key court hearing in 2002, by moving him from the jurisdiction of courts in New York to the more conservative Fourth US Circuit Court of Appeals in Virginia, and by denying Padilla access to a lawyer for two years until it became clear that the denial would hurt the government's position in its Supreme Court arguments.

"They have tried every procedural trick in the book to avoid letting the court get to the merits of the case," says Jenny Martinez, one of Padilla's lawyers and a professor at Stanford Law School. "At this point the kind of maneuvers they are pulling don't pass the sniff test."

In 2002, for example, when it looked as if Padilla might win a court battle challenging his detention in New York, President Bush designated him an "enemy combatant." The action came two days before the critical hearing. Padilla was suddenly taken to a military prison in South Carolina and held incommunicado.

The government informed Padilla's lawyers of the move after the fact, making it impossible for them to file a timely habeas corpus petition that would have clearly established New York as the venue for future litigation in the case. Instead, the secret and speedy action transferred the case into the jurisdiction of the Fourth US Circuit Court of Appeals in Richmond, Va., one of the most conservative appeals courts in the country. That new venue became highly important months later when a New York appeals court ruled in Padilla's favor, saying the president lacked constitutional authority to order his indefinite detention as an enemy combatant.

When the government appealed and the case arrived at the Supreme Court in 2004, federal lawyers insisted that Padilla's lawyers had filed their suit in the wrong jurisdiction - New York's Second Circuit instead of the Fourth Circuit. The Supreme Court agreed, dismissing the case without addressing the central constitutional issues.

The lengthy appeal bought more time for government agents and interrogators working to uncover the full scope of Padilla's alleged connections to Al Qaeda and any knowledge he had of ongoing terror plots.

After losing at the Supreme Court, Padilla's lawyers filed a new suit in South Carolina challenging his detention. A federal judge ruled in Padilla's favor, but the Fourth Circuit reversed, ruling in September that President Bush has the authority to detain Padilla in open-ended military custody. It is that ruling that is now under consideration for review at the Supreme Court.

In the meantime, the Fourth Circuit appears to be having second thoughts about its Padilla decision following the government's announced intention to put him on trial in Miami. The appeals court has asked the government to explain why it shouldn't void its September ruling. In a brief filed last week, the Justice Department conceded that the appeals court would be within its power to vacate its September ruling.

Some legal analysts see the move as an indication of the government's keen interest in preventing the case from reaching the Supreme Court - or any other court. "Further review of the habeas petition in the district court, this court, or the Supreme Court would be wholly imprudent in light of the extremely sensitive constitutional issues raised by the petition," writes Stephan Oestreicher in his brief to the Fourth Circuit.

He says since Padilla's lawyers requested that he be either released or charged, his indictment in Miami satisfies the demand in their petition and leaves the case moot.

Others disagree. "The president did not rescind the designation that Padilla is an enemy combatant," says Donald Rehkopf, a Rochester, N.Y., lawyer who has filed friend of the court briefs in the case on behalf of the National Association of Criminal Defense Lawyers.

Mr. Rehkopf says that without a court ruling or more formal action there is nothing to prevent the government from once again seizing Padilla and holding him in military custody.

Mr. Oestreicher says in his brief that such concerns are "entirely speculative." He adds, "While it is theoretically possible that the president could redesignate [Padilla] for detention as an enemy combatant ... [Padilla] would have ample opportunity to challenge any such military custody at that time."

• May 8, 2002: Suspected of plotting to plant a radiological "dirty bomb" in the US, Jose Padilla is arrested in Chicago on a material witness warrant.

• June 9, 2002: Mr. Padilla is listed as an "enemy combatant" and transferred to military custody.

• Dec. 18, 2003: An appeals court orders Padilla's release. But it suspends that decision after the Bush administration appeals to the Supreme Court.

• March 3, 2004: Lawyers for Padilla meet with him for the first time since June 2002.

• Sept. 9, 2005: An appeals court in Virginia rules that the government can keep holding him indefinitely.

• Oct. 25, 2005: Padilla asks the Supreme Court to decide whether the president has the power to detain "enemy combatants" indefinitely.

• Nov. 22, 2005: A federal grand jury in Miami indicts him on charges that he conspired to "murder, kidnap and maim" people overseas.

• Jan. 13, 2006: Supreme Court justices are set to meet and decide whether to take up the Padilla case.

Source: The Associated Press