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Feds to high court: Allow Padilla move

Suspect's lawyers challenge 'enemy combatant' detention

From Kevin Bohn
CNN

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U.S. citizen Jose Padilla is being held in a military brig after he was designated an "enemy combatant."

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WASHINGTON (CNN) -- The Justice Department on Wednesday asked the U.S. Supreme Court to allow the immediate transfer of suspected terrorist Jose Padilla to civilian custody and sharply criticized an appeals court ruling that barred the move last week.

Padilla has been held by the military as an "enemy combatant" since his arrest in 2002, when U.S. officials accused him of plotting to detonate a radioactive "dirty bomb" in the United States.

Padilla's attorneys contend that the government wants the U.S. citizen moved to civilian custody for trial in an attempt to prevent the Supreme Court from reviewing the legality of his detention.

His lawyers argued in a Supreme Court brief filed Tuesday that the government's actions highlight the need for the justices "to preserve the vital checks and balances" on the president.

The 4th Circuit Court of Appeals blocked his transfer from military to Justice Department custody last week, noting differences between the criminal charges brought against him in November and the accusations made against him as an enemy combatant.

Both the government and Padilla's attorneys have said they don't oppose his transfer to Justice Department custody so that the criminal case can proceed against him. That would him get out of the Navy brig in South Carolina where he has been held for over three years.

But the 4th Circuit found his case "is of sufficient national importance as to warrant consideration by the Supreme Court."

In court papers filed Wednesday, U.S. Solicitor General Paul Clement said the ruling "defies both law and logic."

He called the appeals court order "an unidentified and unprecedented judicial authority to disregard a presidential directive to transfer an enemy combatant out of military custody."

Clement wrote, "The Fourth Circuit's order amounts to an effort by the court to maintain Padilla's military detention solely to preserve a case or controversy about the legality of military detention though neither party to the controversy wishes to continue the military detention."

Padilla was indicted last month by a federal grand jury in Florida on charges of conspiracy to murder U.S. nationals, conspiracy to provide material support to terrorists and providing material support to terrorists. (Full story)

But the Justice Department did not include accusations that Padilla plotted to detonate a "dirty bomb" or to blow up apartment buildings, although government officials had leveled those allegations publicly before Padilla was charged.

Dropping the government's defense of his military detention "would further a perception that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court" and risked undermining the government's credibility in the war on terrorism, the 4th Circuit warned.

The Justice Department says the transfer application should be considered separately from the question of whether the Supreme Court decides to hear the issue of whether Padilla's detention as an enemy combatant is constitutional.

In its ruling, the appeals court seemed to indicate the transfer issue should wait until the high court decides whether it will take the constitutionality case.

While the Justice Department has urged the justices not to take the case, citing the recent criminal indictment as evidence the issue is moot, Padilla's attorneys said they should hear it due to the important constitutional issues involved.

The Supreme Court is expected to decide sometime next month whether to hear the case.

The Justice Department application went to Chief Justice John Roberts, who oversees emergency issues for the Washington area. Justices are expected to decide the transfer issue quickly.

In their Supreme Court brief, Padilla's attorneys argued "the plain purpose" of bringing the indictment against him "is to deter this court from scrutinizing the legal basis for Padilla's detention."

Government officials have denied that the timing of the charges was an attempt to avoid Supreme Court review.

Padilla's attorneys also refer in their brief to the ongoing controversy about President Bush's authorization of the National Security Agency to eavesdrop without court approval on communications inside the United States so long as the end of the communication is overseas.

They asked the Supreme Court to address Padilla's detention since it involves fundamental constitutional questions of how much authority was granted to the president in a post-September 11, 2001, congressional resolution authorizing the use of military force.

Government lawyers have used that resolution as part of the legal justification for the detention of enemy combatants and for the NSA program.

"The government continues to defend this sweeping view of the president's power to substitute military rule for the rule of law," Padilla's attorneys wrote.

And it "seeks now to expand it further, arguing the very authorities that it says justify the indefinite detention without charge of citizens also justify widespread spying on citizens without judicial warrant or congressional notification."

CNN's Bill Mears contributed to this report.

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