Padilla turns to high court

October 28, 2005|By RICHARD A. SERRANO | RICHARD A. SERRANO,LOS ANGELES TIMES

WASHINGTON -- Lawyers for Jose Padilla, a U.S. citizen held as an "enemy combatant," asked the Supreme Court yesterday for the final word on how long the Bush administration can legally hold Americans accused in the war on terrorism without criminal charges or a trial.

Padilla has spent more than three years behind bars and has yet to be brought to court. His lawyers said in their petition to the Supreme Court that his predicament was blatantly unconstitutional for a U.S. citizen. Padilla is a native of New York and was arrested in Chicago.

The lawyers want the Supreme Court to rule that the Bush White House has overstepped its legal authority by holding "without charge an American citizen arrested on American soil" during the war on terrorism that is "indeterminate in scope and time."

But the government, which won a major ruling in the case last month when the 4th U.S. Circuit Court of Appeals decided Padilla could be held without trial, said the president has the authority in wartime to identify enemy combatants and hold them indefinitely. Prosecutors further warn that granting Padilla a trial and risking his eventual release from custody would allow him to again take up arms against this country.

When Padilla was arrested at Chicago's O'Hare International Airport in May 2002, authorities said he was returning from Central Asia to scope out targets for a "dirty bomb" attack using chemical weapons. He eventually was taken to a Navy brig in South Carolina, where he remains.

But officials have since backed off the "dirty bomb" scenario and instead focused on allegations that he fought against U.S. forces in Afghanistan and is an enemy combatant dangerous to this country.

Padilla's lawyers told the Supreme Court that only the justices "possess the national authority to conclusively resolve the issue" about whether an American's right to due process can be upheld without endangering the public against future terrorist attacks.

Legal experts believe the Supreme Court, now waiting for the government's response to Padilla's petition, will decide by the end of this year whether to take the case. Experts said it provides an opportunity for the high court to set uniform standards on how far the White House can proceed with enemy combatants.

"I also hope that Congress passes some legislation that clarifies these issues," said Carl Tobias, a law professor at the University of Richmond in Virginia.

Scott Silliman, a Duke University law professor, said disputes involving other enemy combatants also need to be settled. They include Taliban fighters being held indefinitely at the U.S. naval base at Guantanamo Bay, Cuba, and several top al-Qaida figures reportedly in custody in undisclosed locations around the world.

Silliman, a former Air Force attorney, predicted that the administration ultimately would have to make decisions on their fate, if not prodded first by the Supreme Court.

"The problem is, what do you do with them?" he said. "You can't just keep them indefinitely."

Richard A. Serrano writes for the Los Angeles Times.

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