A manipulated court pushes back
A Times EditorialJose Padilla is an American citizen who was originally accused of planning to set off a radiation bomb on U.S. soil. But when he was finally indicted in November, Padilla was accused of far less serious acts.
Published December 26, 2005
Sometimes, even your friends say enough is enough. When the Bush administration asked a federal appeals court to transfer Jose Padilla from military to civilian law enforcement custody only months after telling the same court that it would endanger national security if he were released from military detention, the judges balked and refused the request. The court is considered to be the most administration-friendly in the country, but even it could not countenance the easy way the Justice Department changed the facts surrounding Padilla to suit its evolving legal strategy.
Padilla is an American citizen who has been held in a military brig as an enemy combatant for more than three years. When he was first captured, then-Attorney General John Ashcroft declared that Padilla was an al-Qaida operative planning to set off a radiation bomb on American soil. He was held without charge as a military prisoner and given no chance to rebut the allegations against him.
Padilla's case generated intense interest. It spoke directly to President Bush's asserted claim that he could hold Americans in contravention of their constitutional rights. According to the administration, Padilla and those like him couldn't be brought before a court of law without endangering national security.
Brushing aside constitutional concerns, the 4th U.S. Circuit Court of Appeals in September granted President Bush a sweeping victory. Judge Michael Luttig, a conservative reportedly on the short list for a seat on the U.S. Supreme Court, wrote for a unanimous 4th Circuit panel that the president had the authority to designate any American who had allegedly taken up arms against the United States as an enemy combatant and hold him without charge.
Padilla appealed, asking the Supreme Court to hear his case. But just as the administration's briefs were due, an indictment of Padilla was announced and the administration asked the 4th Circuit to transfer Padilla from military custody to civilian law enforcement in Florida and vacate its former opinion. This would defeat any Supreme Court review - the obvious point of the legal maneuver.
Had Padilla's indictment included allegations that he was part of an al-Qaida terrorist cell working to commit violent acts in the United States, the 4th Circuit probably would have gone along. But the November indictment did not include anything of the sort. Padilla was accused of far less serious acts, having to do with raising money and providing support for radical Islamic groups fighting in Bosnia, Kosovo, Chechnya, Somalia and elsewhere.
Luttig and his fellow judges had put the institutional credibility of the court on the line to support summary presidential powers, and all indications are that they had been sold a bill of goods.
In a 14-page order denying the government's request, Luttig wrote a scathing rebuke of the government's manipulation of the court system, suggesting that the administration might have unjustifiably held Padilla as an enemy combatant.
Luttig invited the Supreme Court to review the 4th Circuit's earlier judgment, implicitly asking for a reversal in light of the differing set of facts presented in the indictment. He also suggested that the government has damaged its credibility before the court.
The 4th Circuit was willing to abandon our historic commitment to giving the accused a right to defend himself. It should now see the obvious error in that judgment. And so should the Supreme Court.