Court rejects government request to move 'enemy combatant'
Order questions Bush administration credibility
From Phil Hirschkorn
Jose Padilla has been held since May 2002 when he returned to the United States from Pakistan.
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(CNN) -- In an order questioning the Bush administration's "credibility before the courts," a federal appeals court has rejected the government's application to transfer "enemy combatant" Jose Padilla from military to civilian custody.
The 4th U.S. Circuit Court of Appeals blocked the move of Padilla, 35, a U.S. citizen who has been detained for more than three years in U.S. military custody in a South Carolina naval brig, to Florida, where he now faces terrorism conspiracy charges.
The order, which leaves open the possibility of a Supreme Court review of the case, came just five days after Padilla's attorneys told the court in a brief the Bush administration has consistently "manipulated" courts to evade judicial review of its controversial handling of the case.
The government's actions have left "the impression that Padilla may have been held for these years, even if justifiably, by mistake," a three-judge panel of the court said in its 14-page decision issued Wednesday.
Justice Department spokeswoman Tasia Scolinos said the administration was "disappointed" by the appeals court order, which was written by Judge Michael Luttig, an appointee of the first President Bush who was considered by the current President Bush for recent Supreme Court vacancies.
The appeals court also decided against vacating, or withdrawing, its September ruling that President Bush possesses the authority to detain combatants "who have taken up arms against the United States abroad and entered into this country for the purpose of attacking America and its citizens from within."
It is that part of Wednesday's order that leaves the door open for a Supreme Court review. The justices are scheduled to meet in January to consider Padilla's petition to rehear his case.
"This case presents an issue of such especial national importance as to warrant final consideration by that court," the order said.
The appeals court has upheld the president's authority, citing Congress' authorization for the use of military force against the perpetrators of the Sept. 11, 2001, terrorists attacks and the executive's constitutional power as commander-in-chief.
The Justice Department told the Supreme Court in a brief last week that because Padilla "has received the relief that he sought" -- to be released from military custody and charged with crimes -- "the case is moot."
The appeals court decision came a month after the government finally levied criminal charges against Padilla -- charges the appeals court called "considerably different from and less serious than" allegations officials had accused him of publicly and in court.
The entire time Padilla has been held militarily, Bush administration officials have contended he was an associate of al Qaeda who had plotted in the United States either to detonate a crude atomic bomb or blow up apartment buildings with natural gas.
The Florida indictment includes no mention of such allegations, though the terrorism conspiracy charges are serious enough that they could bring a life sentence.
When Justice Department prosecutors asked the appeals court to approve Padilla's transfer to Miami, the appeals court asked the government to explain the inconsistency. Its earlier decision upholding presidential military authority to detain enemy combatants indefinitely without charges relied on bomb plot evidence.
The government's different assertion of facts came two days before prosecutors were due to answer Padilla's petition challenging his detention before the Supreme Court.
"The government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions," Padilla's attorneys argued last week.
The appeals court decried "11th hour" tactics that "have given rise to at least the appearance" of trying to avoid Supreme Court review.
"The government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time," the appeals court said, "can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."
"These impressions have been left, we fear, at what may ultimately prove to be 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," the appeals court said.
In the government's defense, Scolinos said, "The president's authority to detain enemy combatants, which the 4th Circuit has upheld, should not be viewed as an obstacle to an exercise of the government's undoubted authority to prosecute federal crimes, including those related to terrorism."
"We are anxious for the Supreme Court to hear the Padilla case and hope that this decision by the 4th Circuit will give the impetus for the Supreme Court to hear it," said Padilla attorney Donna Newman. "The executive use of authority has been overreaching in the domestic arena."
Padilla, from Brooklyn, has served prison terms for juvenile murder in Illinois and gun possession in Florida. He later converted to Islam, took an Arabic name, and lived in Egypt.
It was prior to his move overseas, according to the Florida indictment, that Padilla became involved in a "jihad" movement against the United States and, in 2000, attended Afghan terrorist training camps run by al Qaeda, the terrorist group behind Sept. 11.
He was arrested in May 2002 when he landed at Chicago's O'Hare Airport, and transferred to New York as a material witness in the terror attack probe.
Two days before a hearing to challenge that incarceration, Padilla was named an enemy combatant.
Padilla's attorneys agreed with the government that Padilla's transfer to Florida should occur but not at the expense of the unresolved legal questions over enemy combatant policies.
Those "special public interest concerns" should proceed to the Supreme Court, Padilla's attorneys said.
Last year, the Supreme Court did not rule on the merits of Padilla's complaints, because the justices ruled his petition challenging his detention should have been filed against his immediate custodians in South Carolina, not New York, where the military took custody of him in June 2002.
But in a companion case involving another enemy combatant detained in the United States, Yasir Hamdi, a U.S. citizen captured in Afghanistan, the high court found the detention lawful, but also open to challenge. The U.S. deported Hamdi to Saudi Arabia before that occurred.
Padilla's legal process effectively started over, with a federal judge in South Carolina deciding in February the administration must charge or release Padilla.
The appeals court in Virginia overruled him, citing the Supreme Court's Hamdi precedent, and ruling that the location of the combatant's arrest did not matter.
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