In a sharp rebuke, a federal appeals court denied Wednesday a Bush administration request to transfer terrorism suspect Jose Padilla from military to civilian law enforcement custody.
The three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals said bringing criminal charges against Padilla in Florida after he had been held by the U.S. military for more than three years as an enemy combatant created the appearance the government may be attempting to avoid high court review of the controversial case.
The judges also refused the administration’s request to void a September ruling that gave President Bush wide authority to detain “enemy combatants” indefinitely without charges on U.S. soil. Wiping out that ruling would have made it virtually impossible for the Supreme Court to review the case.
The decision, written by Judge Michael Luttig, questioned why the administration used one set of facts before the court for 3½ years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month.
In bringing the original criminal charges against Padilla, the Justice Department said Padilla had plotted with al-Qaida to set off a radioactive "dirty bomb" in the United States and schemed to blow up apartment buildings.
But Padilla was charged last month in Miami with being part of a terrorism cell that raised money and recruited fighters to wage jihad outside the United States. The government made no mention of its previous allegations against him in the latest indictment.
Luttig said the administration has risked its “credibility before the courts” by appearing to use the indictment of Padilla to thwart an appeal of the appeals court’s decision that gave the president wide berth in holding enemy combatants.
A Department of Justice statement said DOJ was "disappointed" in the court's decision not to allow Padilla's transfer.
"The President’s authority to detain enemy combatants, which the Fourth 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," DOJ added, in the statement delivered by director of public affairs, Tasua Scolinos.
Padilla's attorney, Donna Newman, said she hopes Wednesday's decision is the impetus for the Supreme Court to take up Padilla's case and the enemy combatant issue in general.
Padilla, a former Chicago gang member, was arrested in 2002 at Chicago’s O’Hare Airport as he returned to the United States from Afghanistan. Justice and Defense Department officials alleged Padilla had come home to carry out an al-Qaida-backed plot to blow up apartment buildings in New York, Washington or Florida.
The ruling came on a day the administration was struggling to get the anti-terrorism Patriot Act reauthorized, and while it is under fire in Congress for Bush's secret order allowing domestic eavesdropping.