Padilla transfer pushed in filing

Bush administration asks high court to OK move of terror suspect to civilian custody


WASHINGTON -- The Justice Department asked the Supreme Court yesterday to intervene in the case of alleged "dirty bomber" Jose Padilla, contending that a lower court had no right to tell the Bush administration whether he should be tried in a criminal court or a military tribunal.

U.S. Solicitor General Paul D. Clement asked the nation's highest court to overturn a ruling by an appellate court last week that essentially blocked Padilla, 35, from being transferred from a military brig in South Carolina to a federal prison in Miami, where prosecutors intend to prosecute him on terrorism conspiracy charges.

Legal analysts said the strongly worded government petition does more than ask for a simple transfer of Padilla, who is a U.S. citizen, from military to civilian custody.

The solicitor general, acting at the behest of the White House, contended in 27 pages of legal arguments that the U.S. 4th Circuit Court of Appeals in Richmond, Va., overstepped its authority when blocking Padilla's transfer, and in the process wrongly challenged a sitting president's right during wartime to protect the nation from a new and dangerous enemy.

"The Fourth Circuit's order defies both law and logic," Clement wrote in his petition. "That unprecedented and unfounded assertion of judicial authority should be undone as expeditiously as possible by this Court."

The government's motion came one day after Padilla's defense lawyers also petitioned the high court and asked its nine justices to use the case to resolve how much unchecked power a president should have when the nation is at war.

Lawyers Donna R. Newman and Andrew G. Patel said the high court's ruling is crucial because of the amorphous and drawn-out nature of the war on terrorism, noting that their client has been held incommunicado and stripped of his constitutional rights for more than three years.

In their brief, Newman and Patel also cited the current National Security Agency domestic spying controversy as another example of illegal and unchecked abuses of power by the Bush administration in its response to the Sept. 11, 2001, attacks. They argued that the NSA case underscores the need for the court to step in "to preserve the vital checks and balances" on the president.

Carl Tobias, a law professor at the University of Richmond who monitors terrorism litigation, said that taken together, the two petitions make it more likely that the Supreme Court will hear the Padilla case on its merits and possibly issue a ruling that sets precedent on a broader set of issues.

Tobias said yesterday's petition by the solicitor general was as notable for its use of combative language as last week's ruling by the Fourth Circuit. Both sharply worded legal briefs, he said, reflected the high stakes and charged emotions associated with the case.

Tobias said the case could set precedent over an array of legal disagreements between the White House and civil liberties advocates, particularly over the administration's use of executive power without seeking prior approval from the courts or Congress.

"That's the nub of this issue,' Tobias said. "Whether there is a pattern of unilateral executive action without approval or consultation with the other two branches of government."

Josh Meyer writes for the Los Angeles Times.

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