- The Washington Times - Wednesday, December 21, 2005


A federal appeals court yesterday denied a Bush administration request to transfer terrorism suspect Jose Padilla from military to civilian law-enforcement custody.

The three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals also refused the administration’s request to vacate a September ruling that gave President Bush wide authority to detain “enemy combatants” indefinitely without charges on U.S. soil.

The decision, written by Judge J. Michael Luttig, questioned why the administration used one set of facts before the court for 3 years to justify holding Padilla without charges but used another set to persuade a grand jury in Florida to indict him last month.

Judge Luttig said the administration has risked its “credibility before the courts” by appearing to try to keep the Supreme Court from reviewing the extent of the president’s power to hold enemy combatants without charges.

Padilla, a former Chicago gang member, was arrested in 2002 at Chicago’s O’Hare International Airport as he returned to the United States from Afghanistan. At that time, Attorney General John Ashcroft accused Padilla of planning to set off a radiological device known as a “dirty bomb.”

But this year, before federal courts in New York and Virginia, the administration argued that Padilla should be held without charges because he had come home to carry out an al Qaeda-backed plot to blow up apartment buildings in New York, Washington or Florida.

Last month, a grand jury in Miami charged Padilla with being part of a North American terror support cell that purportedly raised funds and recruited fighters to wage jihad outside the United States.

Administration attorneys immediately asked the appeals court to transfer Padilla from a U.S. military brig in South Carolina to the custody of law-enforcement authorities in Miami.

Judge Luttig said the Supreme Court must sort out Padilla’s fate, either by accepting or rejecting an appeal by his attorneys of the appellate court’s decision in September that the president has the authority to order Padilla’s detention indefinitely.

Judge Luttig pointed out that anonymous government officials were quoted in press reports as saying that Padilla was charged in Miami because the administration didn’t want the Supreme Court to review the appeals court’s September decision. The judge said the administration’s actions leave the impression that Padilla has been held “by mistake,” and that its tactics could prove costly.

“These impressions have been left, we fear, at what may ultimately prove to be a substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today,” he wrote.

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