Justice Department attacks ruling on Padilla

Eric Lichtblau New York Times Dec. 29, 2005 12:00 AM

WASHINGTON - The Bush administration asked the Supreme Court on Wednesday to allow the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, despite an appellate ruling last week that blocked the move.

The Justice Department, in an unusually strong criticism of a lower court that historically has been a staunch ally, said the earlier order blocking Padilla's transfer to civilian custody represented an "unwarranted attack" on presidential discretion.

In last week's ruling, the U.S. Circuit of Court of Appeals for the 4th Circuit in Richmond, Va., refused to allow Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with al-Qaida to commit terrorist attacks abroad.

The Appeals Court said the Bush administration, in charging Padilla in criminal court in November after jailing him for more than 3 years as an enemy combatant without charges, gave the appearance that it was trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration's credibility in the courts.

But Solicitor General Paul Clement, in the administration's new filing on Wednesday asking the Supreme Court to take up the custody issue, said the 4th Circuit's decision "defies both law and logic," and he noted that Padilla himself has sought to be transferred to civilian custody.

In unusually caustic language, the solicitor general said that the 4th Circuit did not have the authority to "disregard a presidential directive." And he said its decision blocking Padilla's transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of executive discretion and, if given effect, would raise profound separation-of-powers concerns."

In a September ruling in the Padilla case, the 4th Circuit affirmed President Bush's power to hold Padilla as an enemy combatant tied to al-Qaida. That opinion was written by Judge Michael Luttig, whom Bush considered for recent Supreme Court vacancies, and Luttig also wrote last week's opinion blocking Padilla's transfer.

"Nothing in this case surprises me anymore," said Donna Newman, one of Padilla's lawyers. "This is an unusual turn of events for the Justice Department to come out against the 4th Circuit like this, because anybody who looks at precedent would see the 4th Circuit is a very pro-government circuit that generally finds in favor of the government."

Padilla, a convert to Islam, traveled through the Middle East and was arrested in May 2002 upon his return to the United States. The Bush administration, in declaring him an enemy combatant and jailing him in a military brig without access to a lawyer, initially accused him of plotting with al-Qaida to detonate a radiological "dirty bomb" on American streets.

But in bringing criminal charges for the first time against Padilla last month, the administration reversed course and accused him of working to support violent jihad causes in Afghanistan.