A conservative-leaning federal appellate court in Virginia on Wednesday sharply rebuked the Bush administration for its handling of the high profile terrorism case against Jose Padilla, ruling that he cannot be transferred from military custody to face conventional criminal charges until the Supreme Court has a chance to consider his status as an “enemy combatant.”
The court said that the issues presented in the Padilla case–whether he could be held as an enemy combatant and tried through a military tribunal system–needed to be addressed by the nation’s highest court, and that the administration should not be allowed to selectively choose the means by which to try him.
In its ruling, the 4th U.S. Circuit Court of Appeals in Richmond said the government’s actions have left “the impression that Padilla may have been held for these years, even if justifiably, by mistake, an impression we would have thought the government could ill afford to leave extant.”
The court said that while a president’s power to detain an enemy combatant should not be taken lightly, the government cannot “yield to expediency with little or no cost to its conduct of the war on terror,” an impression the court thought the government could not afford.
The administration had sought to drop the initial case against Padilla–that he was an alleged terrorist when arrested at O’Hare International Airport in Chicago accused in a plot to detonate a radioactive “dirty bomb” in the U.S.–and instead charge him through the federal criminal system in a much less serious terrorism case with roots in Florida.
Detention upheld earlier
In September, the same appellate court upheld President Bush’s power to detain Padilla, a former Chicago gang member. In the new ruling, Judge J. Michael Luttig said the government’s attempt to move the case from the military tribunal gives “the appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.
“We are not in a position to ascertain whether behind this appearance there is actual fact, because the government has not explained its decisions either publicly or to the court,” Luttig wrote.
The case, he said, “presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review.” And he said that the appeals court was concerned that the administration might be seen as having intentionally made the enemy combatant case moot “not as legitimate justification but as admission of attempted avoidance of review.”
Luttig, who was mentioned as a short-list candidate for the two recent Supreme Court vacancies, went on to say that the government had offered no legitimate reasons why it did not want to pursue the original case.
Previously, he noted, the government had said that keeping Padilla in military custody was in the interest of national security.
Padilla spent more than 3 1/2 years in a military brig in Charleston, S.C., without many of the constitutional protections afforded typical criminal defendants. Luttig said that the government, by adopting the position that the original case against him could merely be dropped in favor of other charges, could even give rise to the suggestion that the original charges were a mistake.
As such, it could undermine the government’s credibility with the courts. “While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be,” Luttig wrote.
In response, Justice Department spokesperson Tasia Scolinos issued a statement disagreeing with the ruling.
“We are disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him. 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.”
Because the president designated him an enemy combatant, Padilla was denied access to the courts. In a stark reversal, the Justice Department abandoned its original accusations against Padilla and instead a federal grand jury in Miami indicted him on conspiracy charges related to overseas terrorism.
Those charges came only days before a deadline in Padilla’s appeal to the Supreme Court that challenged his incarceration.
More Top Picks Best Seated Row Machines For Home Gyms
Lawyers sought court review
Padilla’s lawyers have consistently argued that they wanted the Supreme Court to address the issue of Padilla’s status as an enemy combatant.
Luttig’s opinion also strongly suggested that the administration’s actions in the Padilla case could have significant implications for the broader issue of the extent of presidential power to designate someone an enemy combatant. He said the government might be offering the view that if it makes a mistake, it can, “in the end, yield to expediency with little or no cost to its conduct of the war against terror . . . .
“And 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 . . . that it seems to abandon today.”
———-