Justice Department Asks Supreme Court To Intervene in ‘Dirty Bomber’ Case
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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 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 an American 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 4th U.S. 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,” Mr. 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 Supreme 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 court’s ruling is crucial because of the amorphous and drawn-out nature of the war on terrorism, noting that their client already has been held incommunicado and stripped of his constitutional rights for more than three years.
In their brief, Ms. Newman and Mr. 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 September 11, 2001, terrorist attacks. They argued that the NSA case underscores the need for the court to step in “to preserve the vital checks and balances” on a president.
A law professor at the University of Richmond, Carl Tobias, 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.
Mr. Tobias said the case ultimately could set precedent over an array of contentious legal disagreements between the White House and civil liberties advocates, particularly over the administration’s aggressive use of executive power without seeking prior approval from the courts or Congress.
“That’s the nub of this issue,” Mr. Tobias said. “Whether there is a pattern of unilateral executive action without approval or consultation with the other two branches of government.”
The Justice Department’s court motion was the latest twist in Padilla’s legal odyssey through the civilian and military court systems.
Padilla was born in Brooklyn and became a member of a Chicago street gang before converting to Islam and traveling to Pakistan. While there, American officials say, he fell in with senior Al Qaeda operatives. Padilla was arrested after stepping off a plane from Pakistan to Chicago in June 2002 and immediately designated an “enemy combatant.”
The government is constitutionally forbidden from arresting and holding people in America without “due process of law.” However, as part of the fight against terrorism, President Bush has claimed that his power as commander in chief allows him to designate people as “enemy combatants” and imprison them indefinitely without filing charges.
John Ashcroft, then the attorney general, initially described Padilla as a central player in an unfolding terrorist operation, in which Al Qaeda operatives would wrap low-level radioactive materials around explosives to make “dirty bombs” and detonate them on American streets.
Since then, Padilla has become the public face of an escalating and often contentious clash between the White House, civil rights advocates and others over whether he is innocent, and whether he has been unfairly stripped of his constitutional rights.
Recently, Padilla’s appeal of his designation as an enemy combatant was days away from heading to the Supreme Court when the administration suddenly announced he was being indicted. Prosecutors said they would try him on different charges that didn’t include any “dirty bomb” allegations – and in a public courtroom rather than a closed and controversial military tribunal.
American officials said that did not mean they were backing away from the allegations. They said in interviews with the Los Angeles Times that they downgraded the charges in the federal court case because they could not present the classified evidence backing up the more serious allegations in a civilian court.
Last week, the federal appeals court – the same body that upheld the administration’s right to designate Padilla as an enemy combatant in the first place – issued a sharply worded ruling that rejected the administration’s shift in strategy.