- The Washington Times - Wednesday, November 30, 2005

A federal appeals court yesterday ordered the Bush administration to further explain its criminal charges against terror suspect Jose Padilla, amid questions on why the charges differ from facts the administration used to justify his detention as an enemy combatant.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond delayed an administration motion to transfer Padilla from military custody in South Carolina to a civilian jail in Florida, pending a response within 10 days.

A former Chicago gang member, Padilla was identified by top Justice Department officials after his 2002 arrest as having plotted with al Qaeda to kill Americans and conspiring to build a “dirty bomb.” But the federal indictment unsealed against him last week made no mention of either accusation.

The administration sought the indictment after a federal district court in South Carolina mandated that Padilla either be charged or released, because he is a U.S. citizen and had been held more than three years as an enemy combatant.

The district court’s ruling was overturned in September by the 4th Circuit appeals panel, which ruled that Padilla could be held as an enemy combatant despite being an American. Padilla petitioned the Supreme Court to review the appeals ruling, and before the high court responded, the administration announced it would charge him with a crime.



The appeals court order yesterday directs the administration to answer whether the panel’s reasoning to allow Padilla held as an enemy combatant should be stricken from court records “in light of the different facts that were alleged by the president to warrant Padilla’s military detention … and the alleged facts on which Padilla has now been indicted.”

A Justice Department spokesman said the department intends to comply with the order, but offered no other comment.

Legal scholars had mixed reactions. “The major point is the 4th Circuit is asking the government to justify its change in position,” said Carl W. Tobias of the University of Richmond School of Law.

Douglas M. Kmiec of Pepperdine University’s School of Law said the order was “logical” because “no federal court wants to issue an unnecessary ruling.” He said the fact that the administration filed charges against Padilla “does not mean they have lost interest in holding him as an enemy combatant.

“The precedent that the 4th Circuit has provided would be obviously apt and useful with respect to the exercise of that authority,” he said.

Meanwhile, though the charges against Padilla make no reference to a dirty bomb plot, the administration outlined those accusations in charging documents released last month by the Pentagon, which names Binyam Ahmed Muhammad, a terror suspect the administration intends to try by special war-crimes tribunal at the U.S. Naval Base at Guantanamo Bay, Cuba.

The documents said Padilla and Muhammad worked jointly on plans to “make an improvised dirty bomb,” and that the two met with September 11 mastermind Khalid Shaikh Mohammed.

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