Terrorism Suspect Padilla to Remain in Military Custody

The Bush administration has lost its latest battle over the detention of Jose Padilla, accused of plotting to blow up apartment buildings in the United States. A federal appeals court denied the administration's request to transfer Padilla from military to civilian law enforcement custody.

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RENEE MONTAGNE, host:

A federal appeals court has gotten in the way of part of the Bush administration's legal strategy in the war on terror. For more than three years, the government held Jose Padilla as an enemy combatant, saying he plotted to carry out terrorist attacks in the United States. Padilla's lawyers challenged the enemy combatant designation in court. After the government won an appeals court victory, Justice Department lawyers changed course and indicted Padilla. Then they asked the court to forget about the enemy combatant issue and the court said no. NPR's Ari Shapiro has the story.

ARI SHAPIRO reporting:

This was a win for Jose Padilla's defense lawyer, Andrew Patel, but he had surprisingly little to say in reaction.

Mr. ANDREW PATEL (Jose Padilla's Lawyer): Look, this is an astounding document. There's really nothing that I can add that Judge Luttig hasn't already said.

SHAPIRO: Judge Michael Luttig of the 4th Circuit Appeals Court in Richmond said a lot in his opinion yesterday. Much of it rebukes the government. That's notable because Luttig is widely considered to be sympathetic to the Bush administration. Back in September, Judge Luttig agreed with the government's argument that it could hold Jose Padilla as an enemy combatant indefinitely without bringing criminal charges against the American citizen. Then Justice Department officials brought criminal charges. They maintained Padilla was no longer an enemy combatant, just a regular criminal suspect. They asked the 4th Circuit to vacate its opinion and hand Padilla over to the criminal justice system and that's where they lost the court's favor.

Carl Tobias teaches law at the University of Richmond.

Professor CARL TOBIAS (University of Richmond): Judge Luttig is--this was calling the government to task and asking it to explain why there is this impression left that the government may have held Padilla erroneously or that it's trying to avoid ultimate resolution in the Supreme Court.

SHAPIRO: Luttig authored a three-judge decision, saying the Supreme Court should decide whether to hear the Padilla case despite the government's wishes. He questions why the Padilla indictment makes no mention of the crimes Padilla was originally accused of and he says the timing of the indictment, just days before Supreme Court briefs were due has, quote, "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court." Professor Tobias says this means the Bush administration's theory of executive war powers will be reviewed once again.

Prof. TOBIAS: This is an important case, one of the most important on the issue of the president's unilateral executive authority to declare someone an enemy combatant and detain that person indefinitely.

SHAPIRO: Justice Department officials were disappointed with the ruling. Spokeswoman Tasia Scolinos released a written statement. She said the Justice Department has a right to prosecute federal crimes and that that has nothing to do with whether or not someone is an enemy combatant. She says the DOJ will go on pursuing the criminal charges and is considering its next move. Defense lawyer Patel says it's nice to see judges keeping the executive Branch in check, especially the 4th Circuit judges who've decided against him in the past.

Mr. PATEL: The big picture of what Judge Luttig is saying, which is questioning what the government is doing and why they're doing it, that's a very healthy thing.

SHAPIRO: Next comes the long-awaited word from the Supreme Court on enemy combatants.

Ari Shapiro, NPR News, Washington.

MONTAGNE: This is NPR News.

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