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Terror case tests reach of federal power

Suspected terrorist Jose Padilla persists in a bid to get the Supreme Court to review US government's legal tactics.

By Staff writer of The Christian Science Monitor / December 16, 2005



WASHINGTON

The US is playing a shell game with one of the nation's most important - and perhaps dangerous - prisoners.

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Through aggressive legal tactics, the government has put alleged "dirty bomb" conspirator Jose Padilla through an odyssey unprecedented in American jurisprudence.

In the 3-1/2 years since his arrest at Chicago's O'Hare International Airport, the government has repeatedly asserted unilateral power in a way that has undercut Mr. Padilla's ability to defend himself.

In addition, Justice Department lawyers have used that same unilateral power to help insulate their actions from the scrutiny of the judiciary - including the US Supreme Court.

Critics see such tactics as a troubling symptom of the Bush adminstration's expansive view of presidential power. Supporters say the tactics are designed more to help win the war on terror than to win court battles.

That government strategy has left unresolved a string of legal challenges raising some of the most fundamental issues of US constitutional law. They include the president's authority to name US citizens as "enemy combatants" in the war on terror and what rights, if any, protect such citizens.

"At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens in assessing the Padilla case in 2004. "If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Justice Stevens wrote those words in dissent of a 5-4 decision by the high court to dismiss Padilla's case on jurisdictional grounds rather than confronting the central constitutional issues. Now, 18 months later, Padilla's case is back before the Supreme Court. The justices are being asked to consider the merits of Padilla's arguments and, by extension, to judge the legality of the administration's actions. Many court watchers believe at least five of the justices are prepared to rule in Padilla's favor should the high court agree to take up his case.

Concerned about that possibility, the government is urging the justices not to hear the Padilla case. But the Bush administration is exerting its unilateral power in an apparent attempt to render Padilla's Supreme Court challenge moot. Two days before the government's brief was due at the Supreme Court, the administration announced in a surprise move that it was ending its indefinite detention of Padilla as an enemy combatant. Instead, he would be relocated to a Miami lockup and charged for allegedly providing material support to terror groups.

Lawyers for the government and its supporters defend these tactics as necessary innovations in response to an ever-changing war on terror being waged by a ruthless enemy plotting mass murder. Other analysts see it more as a matter of convenience.

Prior to his designation as a criminal, Padilla had earned a unique status among those imprisoned by the government. He was the first American citizen seized on American soil and held in indefinite detention as an "enemy combatant." Government officials had said he was a trained member of Al Qaeda who agreed to return to the US to blow up apartment buildings and detonate a radiological device in a major city.

Administration lawyers cited national security and safety concerns as justification for the extraordinary security measures taken against Padilla. But the Miami charges include no mention of dirty bombs or apartment building plots.

Juliette Kayyem, a terrorism and security expert at Harvard's Kennedy School of Government, says the Miami charges appear to be an effort to set the stage for a plea deal that will help the government resolve the case without messy court hearings that might reveal sources as well as procedures.

"God knows what happened to him during his detention and what kind of interrogation processes he was put through, and they don't want that to come out," she says.

At the same time the administration wants to avoid a possible defeat at the Supreme Court. "Basically, they need this case to go away," Ms. Kayyem says.

Lawyers for Padilla say the new criminal charges do not render his case moot. Should he refuse a plea deal and/or be acquitted at trial in Miami there is nothing to prevent the government from placing him back in military custody as an enemy combatant, they say.

The Miami charges are only the most recent effort by the government to use presidential authority in the war on terror to try to evade judicial review of its actions, legal analysts say.

Government lawyers did it by moving Padilla into military custody on the eve of a key court hearing in 2002, by moving him from the jurisdiction of courts in New York to the more conservative Fourth US Circuit Court of Appeals in Virginia, and by denying Padilla access to a lawyer for two years until it became clear that the denial would hurt the government's position in its Supreme Court arguments.

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