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Terrorism


Unexpected Developments in Padilla Terror Trial

Posted: December 8, 2005

Jose Padilla has been indicted by a federal grand jury in Miami after being held in Defense Department custody for over three years as an "enemy combatant."

 

The indictment against Padilla, unsealed on November 22, 2005, consists of new charges and adds Padilla to an existing criminal case in Florida against four other defendants accused of terrorism-related crimes. 

 

The indictment charges Padilla and the other defendants with conspiracy to murder U.S. nationals and providing "material support to terrorists" in North America.  The allegations that caused President Bush to classify Padilla an "enemy combatant" in 2002 – that Padilla planned to blow up hotels and apartment buildings in the U.S. and to use a radioactive "dirty bomb" – are not included in the indictment. 

 

The new charges are based on evidence gathered during Padilla's confinement in military custody, which means that the government does not have to be concerned about the admissibility of this evidence in civilian courts.

 

It is widely speculated that the Administration hopes that this indictment will avoid the possibility of an adverse ruling in Padilla's pending Supreme Court appeal, which challenges Padilla's designation as an "enemy combatant."  In this appeal, the Supreme Court could rule to limit the president's ability to detain American citizens as enemy combatants. 

 

After the indictment was unsealed, the Supreme Court granted the federal government an 18 day extension (until December 16, 2005) to submit its response to the Padilla appeal.  The Justice Department says that it will argue in its response that the case should be dismissed as moot because of the changed circumstances in Padilla's status.  President Bush issued an order on November 20, 2005 to transfer Padilla from military to civilian custody. The new order "supersedes" the 2002 order that designated Padilla a combatant, according to the government.

 

Padilla's lawyers say that they will argue that the appeal is not moot because Padilla could be designated an "enemy combatant" in the future and that the issue of whether the President has the power to designate American citizens as combatants and detain them indefinitely is still outstanding.  Legal experts say that the outcome of the Padilla case is unclear.

 

As part of the Justice Department's strategy, it asked the Fourth Circuit to authorize Padilla's transfer from military custody to a federal prison in Miami.  Padilla's lawyers did not object to this request.  The government expected the Fourth Circuit to grant this request, but on November 30, 2005, in a surprise move, the appeals court ordered new briefing from both parties on whether it should vacate its September 9, 2005, ruling that upheld Padilla's detention as an "enemy combatant" if they grant the government's motion to transfer Padilla.  The appeals court asks this question because its ruling relied on facts that the government alleged to warrant the military detention, which are different from the alleged facts on which Padilla had been indicted. 

 

The Fourth Circuit upheld Padilla's detention based on more serious charges than are included in the indictment.  If the appeals court does vacate its earlier ruling, it would eliminate an important precedent supporting presidential power during a war on terrorism.  The government will file its new brief on December 9 and Padilla's lawyers have until December 16 to do so. 

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