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.
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"They have tried every procedural trick in the book to avoid letting the court get to the merits of the case," says Jenny Martinez, one of Padilla's lawyers and a professor at Stanford Law School. "At this point the kind of maneuvers they are pulling don't pass the sniff test."Skip to next paragraph
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In 2002, for example, when it looked as if Padilla might win a court battle challenging his detention in New York, President Bush designated him an "enemy combatant." The action came two days before the critical hearing. Padilla was suddenly taken to a military prison in South Carolina and held incommunicado.
The government informed Padilla's lawyers of the move after the fact, making it impossible for them to file a timely habeas corpus petition that would have clearly established New York as the venue for future litigation in the case. Instead, the secret and speedy action transferred the case into the jurisdiction of the Fourth US Circuit Court of Appeals in Richmond, Va., one of the most conservative appeals courts in the country. That new venue became highly important months later when a New York appeals court ruled in Padilla's favor, saying the president lacked constitutional authority to order his indefinite detention as an enemy combatant.
When the government appealed and the case arrived at the Supreme Court in 2004, federal lawyers insisted that Padilla's lawyers had filed their suit in the wrong jurisdiction - New York's Second Circuit instead of the Fourth Circuit. The Supreme Court agreed, dismissing the case without addressing the central constitutional issues.
The lengthy appeal bought more time for government agents and interrogators working to uncover the full scope of Padilla's alleged connections to Al Qaeda and any knowledge he had of ongoing terror plots.
After losing at the Supreme Court, Padilla's lawyers filed a new suit in South Carolina challenging his detention. A federal judge ruled in Padilla's favor, but the Fourth Circuit reversed, ruling in September that President Bush has the authority to detain Padilla in open-ended military custody. It is that ruling that is now under consideration for review at the Supreme Court.
In the meantime, the Fourth Circuit appears to be having second thoughts about its Padilla decision following the government's announced intention to put him on trial in Miami. The appeals court has asked the government to explain why it shouldn't void its September ruling. In a brief filed last week, the Justice Department conceded that the appeals court would be within its power to vacate its September ruling.
Some legal analysts see the move as an indication of the government's keen interest in preventing the case from reaching the Supreme Court - or any other court. "Further review of the habeas petition in the district court, this court, or the Supreme Court would be wholly imprudent in light of the extremely sensitive constitutional issues raised by the petition," writes Stephan Oestreicher in his brief to the Fourth Circuit.
He says since Padilla's lawyers requested that he be either released or charged, his indictment in Miami satisfies the demand in their petition and leaves the case moot.
Others disagree. "The president did not rescind the designation that Padilla is an enemy combatant," says Donald Rehkopf, a Rochester, N.Y., lawyer who has filed friend of the court briefs in the case on behalf of the National Association of Criminal Defense Lawyers.
Mr. Rehkopf says that without a court ruling or more formal action there is nothing to prevent the government from once again seizing Padilla and holding him in military custody.
Mr. Oestreicher says in his brief that such concerns are "entirely speculative." He adds, "While it is theoretically possible that the president could redesignate [Padilla] for detention as an enemy combatant ... [Padilla] would have ample opportunity to challenge any such military custody at that time."
• May 8, 2002: Suspected of plotting to plant a radiological "dirty bomb" in the US, Jose Padilla is arrested in Chicago on a material witness warrant.
• June 9, 2002: Mr. Padilla is listed as an "enemy combatant" and transferred to military custody.
• Dec. 18, 2003: An appeals court orders Padilla's release. But it suspends that decision after the Bush administration appeals to the Supreme Court.
• March 3, 2004: Lawyers for Padilla meet with him for the first time since June 2002.
• Sept. 9, 2005: An appeals court in Virginia rules that the government can keep holding him indefinitely.
• Oct. 25, 2005: Padilla asks the Supreme Court to decide whether the president has the power to detain "enemy combatants" indefinitely.
• Nov. 22, 2005: A federal grand jury in Miami indicts him on charges that he conspired to "murder, kidnap and maim" people overseas.
• Jan. 13, 2006: Supreme Court justices are set to meet and decide whether to take up the Padilla case.
Source: The Associated Press