Court rebukes Bush in Padilla case


WASHINGTON -- A federal appeals court delivered a sharp rebuke to the Bush administration yesterday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges.

In denying the administration's request, the three-judge panel issued a strongly worded opinion that said the Justice Department's attempt to transfer Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration's behavior in the Padilla case could jeopardize its credibility before the courts in other terrorism cases.

What made yesterday's action by the 4th U.S. Circuit Court of Appeals in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who had in September provided the administration with a sweeping court victory, saying that President Bush had the authority to detain Padilla, a U.S. citizen, indefinitely without trial as an enemy combatant.

But the judges were clearly angered when the administration suddenly shifted course Nov. 22, saying it no longer needed that authority because it now wanted to try Padilla in a civilian court. The government said that as a result of the shift, the Supreme Court should no longer consider reviewing the issue of whether Bush could detain a U.S. citizen indefinitely as an enemy combatant. Many legal analysts speculated at the time that the administration's sudden change in approach was an effort to avoid Supreme Court review of the 4th Circuit ruling.

In yesterday's opinion, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Padilla as well as the government's suggestion that it vacate the September decision upholding the detention of Padilla for more than three years in a military brig as an enemy combatant.

Luttig, a strong conservative judicial voice who has been considered by Bush for the Supreme Court, said the panel would not agree to the government's requests because that would compound what is "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."

Luttig wrote that the timing of the government's decision to switch Padilla from military custody to a civilian criminal trial has "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court." That decision came after Padilla had been held for more than three years and just as the Supreme Court was considering whether the president had the authority to detain him as an enemy combatant.

Professor Carl W. Tobias of the University of Richmond Law School, who has written about the government's legal strategy in terrorism cases, said the ruling yesterday was an extraordinary rebuff to the Bush administration by the judicial branch.

"It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," he said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill-used in expending their legitimacy to Bush's action only to have the government decide that it no longer wanted the authority that it had sought so strongly.

Tasia Scolinos, a spokeswoman for the Justice Department, said in a statement, "We are disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him. The president's authority to detain enemy combatants, which the 4th Circuit has upheld, should not be viewed as an obstacle to an exercise of the government's undoubted authority to prosecute federal crimes, including those related to terrorism."

Scolinos said the department is considering what to do in light of the court's refusal to authorize the transfer of Padilla. The likely outcome of the appeals court panel decision, some lawyers said, was that the Supreme Court would be obliged to consider the case.

Jonathan M. Freiman, one of lawyers for Padilla, said the appeals court "seems to have agreed with what we asserted in our brief, that the government has been attempting to evade Supreme Court review."

Although Luttig was careful in his opinion to avoid flatly asserting that the government had misbehaved, his skepticism about its behavior was unmistakable; he used the word "appearance" several times in explaining why he believed the government's approach in the Padilla case raised suspicions.

He said that the government may not have considered fully the consequences of its approach, "not only for the public perception of the war on terror, but also for the government's credibility before the courts in litigation."

He said the government "must surely understand" that it has left the impression that Padilla may have been held for more than three years by mistake.

Luttig was joined by Judges M. Blane Michael and William B. Traxler Jr.

Padilla, a former Chicago gang member who converted to Islam and who, officials say, traveled to the Middle East and offered his services to terrorist organizations, was arrested at Chicago's O'Hare International Airport on May 8, 2002. Government officials initially portrayed him as someone who was considering a plot to explode a radioactive "dirty bomb" in some American city and then to destroy gas lines to destroy public buildings.

In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and charged him with fighting U.S. forces alongside al-Qaida soldiers in Afghanistan.

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