Terror case challenges White House strategy

An appeals court refused the government's request to have Jose Padilla transferred to Florida for a criminal trial.

Suddenly, terror suspect Jose Padilla seems a lot more dangerous to the Bush administration.

It has nothing to do with his suspected involvement in Al Qaeda bomb plots, analysts say. Rather, the administration worries that the US Supreme Court might agree to hear Mr. Padilla's case and decide one of the most pressing constitutional issues in the war on terrorism. And by all appearances, government lawyers think they might lose.

The issue: Does President Bush have the power as commander in chief to order the open-ended military detention of US citizens that he deems enemy combatants?

It is not a minor matter. The claim of broad presidential power is a cornerstone of the administration's effort to restore what it views as the proper level of executive authority after decades of erosion following the Watergate scandal. Such robust, independent presidential power is said to be critical to safeguarding the country from a repeat of the 9/11 terror attacks.

But the White House faces a significant hurdle. It is not at all clear that a majority of Supreme Court justices agree with such an expansive view of executive power.

The high court addressed the enemy- combatant issue in June 2004 in a case involving Yaser Hamdi.

A mere plurality ruled that President Bush did have the authority to detain a US citizen based on a congressional authorization passed shortly after the 9/11 attacks.

But only one justice, Clarence Thomas, embraced a broad conception of executive power. The justices had also agreed to hear Padilla's case at that time, but they ended up dismissing it on jurisdictional grounds without reaching the broader issue.

Now Padilla's case is back before the court and his lawyers are urging the justices to hear it.

In contrast, government lawyers are arguing in their brief to the high court that Padilla's recent indictment in Miami on terror-conspiracy charges renders his Supreme Court appeal moot.

To shore up that argument, they took the highly unusual step of inviting the Fourth US Circuit Court of Appeals in Richmond to void a September ruling upholding Padilla's military detention as an enemy combatant. They also asked the court to approve Padilla's transfer to Florida to stand trial on the criminal charges.

In a major setback to the government this week, a three-judge panel of the Fourth Circuit refused both requests and questioned the government's motives in seeking to move Padilla to Florida and vacate the earlier ruling.

The administration's actions create "an appearance that the government may be attempting to avoid consideration of our decision [in the Padilla case] by the Supreme Court," writes Judge J. Michael Luttig in a 13-page order released on Wednesday.

"We believe that the issue [in Padilla's case] is of sufficient national importance as to warrant consideration by the Supreme Court," Judge Luttig writes.

The judge went on to criticize the government for underestimating the damage its actions were causing to public perceptions of the war on terror and the government's credibility before the courts.

"While there could be an objective that could command such a price as all this, it is difficult to imagine what that objective might be," Luttig writes.

The rebuke carries extra sting, analysts say, because of who delivered it. Luttig is one of the nation's most conservative appeals court judges and was on the short list of White House favorites for each of the two recent vacancies on the Supreme Court.

Analysts say the move may have made a Supreme Court review of Padilla's case more likely.

"The Fourth Circuit could have vacated its ruling and I doubt the Supreme Court would have entertained [the Padilla case] at that point," says Carl Tobias, a professor at the University of Richmond Law School. "But now it is very much alive in the Supreme Court and it seems momentum is moving that way."

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