Padilla move is seen as showdown stopper

November 24, 2005|By ROBERT LITTLE | ROBERT LITTLE,SUN REPORTER

The Justice Department, which secured an indictment of alleged al-Qaida sympathizer Jose Padilla on criminal charges and announced plans this week to transfer him out of military custody, appears to be trying to avoid a showdown in the U.S. Supreme Court over the rights of suspected terrorists, constitutional lawyers and legal analysts said yesterday.

But if that strategy fails and the Supreme Court chooses to review whether "enemy combatants," as Padilla has been designated, are entitled to court hearings and access to a lawyer, the result could alter the way the Bush administration must treat terrorism suspects worldwide - possibly including those reportedly detained in secret prisons overseas.

The rights of suspected terrorists have slowly taken shape in the courts since the Pentagon began detaining them indefinitely at the U.S. military prison at Guantanamo Bay, Cuba, in 2001. The Supreme Court has upheld the government's right to treat suspects - including Americans - as war criminals with limited access to the civilian justice system. But the high court has also said the suspects must be allowed to challenge their detentions in federal court, saying in one case that "a state of war is not a blank check for the president."

The White House has never confirmed claims, first detailed in The Washington Post, that the government has operated secret prisons in Eastern Europe and other locations to interrogate its most important terrorism suspects. But human rights advocates and others say a case such as Padilla's could lead to a broad new precedent that could force the government to expose some of the alleged detention camps in foreign countries, particularly if any U.S. citizens are detained there.

"Who is over there? Why are they being held? We'd like to know more, and we're concerned there are U.S. citizens detained in these prisons as well," said Monique Beadle, refugee program director for the World Organization for Human Rights USA in Washington. "I think the Justice Department made a very smart move with the Padilla case if they don't want the Supreme Court to get any deeper into these issues."

Padilla, 35, a former Chicago-area gang member who allegedly trained and fought with al-Qaida operatives in Afghanistan, was indicted last week on charges that he trained as a terrorist to "murder, kidnap and maim" targets overseas. He was expected to be moved this week from a U.S. Navy brig in South Carolina, where he had been held since 2002 without trial, to a federal detention center in Miami.

A federal judge in South Carolina ordered the government to charge or release Padilla last year, saying federal officials lacked the authority to treat an American arrested in the United States as a war criminal. But the federal appeals court in Richmond, Va., overturned the ruling in September.

Justice Department officials say Padilla's removal from the military system should make his appeal of that ruling to the Supreme Court moot, as he has now been charged as a criminal in the civilian justice system.

But legal scholars say the case won't necessarily die just because Padilla's situation has changed. The constitutional uncertainty still remains, and the Supreme Court might feel compelled to resolve it given the Bush administration's aggressive probing of the boundaries of existing law.

"I don't want to minimize the problem. There really are some very dangerous people out there," said Michael C. Dorf, a constitutional law professor at Columbia University. "But up until the Bush administration, it seemed like an acceptable way of detaining them was to try them in court. You didn't have to whisk them off to military jurisdiction indefinitely."

The government's right to treat American citizens as "enemy combatants" or "enemy belligerents" subject to military authority in wartime has been established in the law since at least June 1942 when American Herbert Haupt and seven conspirators in German submarines landed on the East Coast.

Trained at a German "sabotage school" in Berlin early in World War II, Haupt landed with a supply of explosives, wire and timing devices and explicit instructions from the Nazi regime to spy on the United States and attack its industrial infrastructure. He was arrested by federal agents in Chicago, handed over to Army officials and tried by a military commission appointed by the president - a process sanctioned by the Supreme Court a month later.

"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because [of its] violation of the law of war," the court wrote in July 1942.

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