Court Rejects Transfer of Padilla to Civilian Custody

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An appeals court denies a Bush administration request to transfer Jose Padilla, a U.S. citizen facing terrorism charges, from military to civilian law-enforcement custody. Held as an enemy combatant for more than three years, Padilla was indicted as an ordinary criminal last month.

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

Today a federal appeals court in Richmond, Virginia, rebuffed part of the Bush administration's legal strategy in the war on terror. The decision came in the case of Jose Padilla. After three and a half years of holding Padilla as an enemy combatant, the Bush administration indicted him as an ordinary criminal last month and asked permission to move him out of military custody. Well, the appeals court said not so fast. NPR's Ari Shapiro is here to explain this decision.

Welcome, Ari.

ARI SHAPIRO reporting:

Hi.

SIEGEL: And first, I'd like you to remind us of the difference between the original accusations against Mr. Padilla, who calls himself Padilla (pronounced Pa-DIL-a)--that's how he pronounces it, according to his lawyer--and the charges in the more recent criminal indictment.

SHAPIRO: Well, when he was first detained in 2002, Attorney General John Ashcroft called him a dirty bomber and said that he'd planned to detonate a radioactive weapon in the US. Later, federal officials said that he planned to use natural gas to blow up apartment buildings in the United States. They detained him as an enemy combatant for more than three years, as you say, and his lawyers went to court to challenge that designation. After the case percolated its way through the legal system, the 4th Circuit Court of Appeals in Richmond, Virginia, widely considered to ba a rather conservative court, found in favor of the Bush administration; basically said the administration could hold him as an enemy combatant.

The case was appealed to the Supreme Court, and that's when this unexpected twist came: that the Justice Department indicted him as an ordinary criminal. And the charges in the indictment were very different from the charges that they had first leveled against him. They said that he was part of a North American support cell that was giving money and recruits to overseas terrorist groups. But there was no mention of a dirty bomb, no mention of natural gas detonations of apartment buildings. After the indictment the administration asked the 4th Circuit Court of Appeals to vacate its earlier decision and make Padilla an ordinary criminal suspect.

SIEGEL: They're saying, `First we asked you to say that we could treat him as an enemy combatant, and now we'd like you to say forget about that. He's now going to be'--well, what did the 4th Circuit say in response to this?

SHAPIRO: Well, they basically said no. They said the Supreme Court needs a chance to review this decision. And they really slapped the government on the wrist in the opinion. The judges said the government's actions give, and this is a quote, "an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." The judges mention that Padilla's indictment made no mention of the facts that were initially used to justify his military detention. The opinion notes that the indictment came just before the Supreme Court briefs were due.

Essentially the judges say, `Look, the government may have had a good reason for indicting Padilla after three years, but it hasn't explained what that reason is. And in the absence of a good explanation, it look like they're just trying to end the appeals process when they get a favorable decision.' This is a three-judge panel that had supported the administration in the Padilla trial, widely considered to be, as I mentioned, rather conservative.

SIEGEL: The author of this opinion is Judge Michael Luttig, who was on all those...

SIEGEL and SHAPIRO: (In unison) ...short lists for the Supreme Court.

SHAPIRO: Exactly.

SIEGEL: So what happens to the case now?

SHAPIRO: Well, it goes back to the Supreme Court for consideration, and the judges have to decide whether they're going to take the case or not. If they do take the case, it puts the administration in a very risky position. If the court does not decide in their favor, it could be a major legal setback for them.

SIEGEL: But the Supreme Court has looked at issues similar to this one in another case.

SHAPIRO: Right. That was the case of Yaser Hamdi. And the Supreme Court said the administration could detain Hamdi as an enemy combatant. He, like Padilla, was a US citizen. The difference is Hamdi was detained overseas; Padilla was caught in the United States. Now O'Connor was a key vote in the Hamdi case. She is now poised to retire. Chief Justice Rehnquist, who was on the court during the Hamdi case, has been replaced by John Roberts. So if the Supreme Court does take this case, the makeup of the court could be crucial to the outcome.

SIEGEL: That's NPR's Ari Shapiro. Ari, thank you.

SHAPIRO: You're welcome.

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