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Padilla Stays in the Brig

A government request to transfer terrorism suspect Jose Padilla from military to civilian custody was rejected yesterday by an appeals court. A reporter discusses the latest developments.

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    Jose Padilla is an American citizen arrested in Chicago in 2002, and accused of plotting a radioactive bomb attack, but never charged and never tried. He's been held for years in a naval brig in South Carolina.

    Last month, the administration charged Padilla, but with a different crime from the one they accused him of in 2002: Raising funds and recruiting fighters to fight outside the U.S. The government requested, among other things, that Padilla move into civilian custody to await trial. But yesterday, a federal appeals court denied that request.

    To explain this latest development, we're joined by Neil Lewis of The New York Times.

    And Neil, how did it happen that the court that, in effect, gave George Bush the right to declare Jose Padilla an enemy combatant is now saying well, wait a minute, you can't transfer him to this civilian court for trial?


    That's precisely what makes the rebuke the court delivered to the administration so extraordinary. They weren't challenging President Bush's ability to detain this man as an enemy combatant. They had already given him that power.

    But they were challenging the behavior of the government, suggesting that the government was manipulating the case, manipulating the courts and trying to avoid review in the Supreme Court.

    And in some extraordinary language in this order yesterday Judge Michael Luttig, who wrote for the three-judge panel said that the government was risking its credibility by doing this in future terrorism cases — that other judges may not believe the assertions made by the government when they come in court.

    And further, he said, you know, you have made it appear to the public that you might have kept this man in detention for more than three years unjustifiably.


    So by Judge Luttig's reasoning, if I follow this, if the government had gone ahead and charged him with what they said they were holding him for in the first place, he wouldn't have objected?


    That's right. That's right. What's extraordinary, as you say is this court had given President Bush the power to detain him as an enemy combatant.

    When they made the switch, when the government made the switch in tactics and sought to have him transferred from military custody to civilian custody, the government, the administration, the Justice Department thought this would be the simplest, most perfunctory thing — that the court would say fine, go ahead and do that, it is no longer a case, doesn't matter any more, go ahead and do it. And to their shock, these judges these appeals court judges objected.

    Judges don't like to be — to feel they might have been used in some pursuit of something that's not going to be used that's part of a strategy. So I believe what happened is the judges thought they had expended an enormous amount of their legitimacy and intellectual capital and institutional capital on agreeing with the administration.

    And then the administration turned around and said never mind, we're not going that way, we're going a different way, we don't need that. This was greatly offensive and I don't think it is a liberal or conservative issue.

    I don't think it is a Democratic or a Republican issue. I think it's an –institutional judiciary judges being quite angered at the executive branch feeling they were fooled with and toyed with.


    Now when the Bush administration asked the Fourth Circuit Court to help orchestrate this transfer to civilian jurisdiction, they also asked that this court's earlier decision on this case be vacated; why did they do that?


    I think it was part of the same effort to ensure that the case did not go up to the Supreme Court for review. If they got the appeals court to vacate their opinion, there is nothing for the Supreme Court to review. It's part of their effort to say this is moot now; the case is moot now. The guy is no longer being held by the military so there is nothing for the Supreme Court to review.

    I think the evidence is overwhelming that the reason the administration shifted their strategy and tried to try Jose Padilla in a civilian court was they were afraid of a Supreme Court review. They had been losing in the courts recently in similar cases involving terrorism. And I think they chose not to risk it.

    And the judges were clearly offended. In fact, Judge Luttig who is a major conservative voice and has been considered by President Bush for the Supreme Court, was so extreme in his language and harsh in his language, said this is an issue of such importance that it deserves to be heard by the Supreme Court, in effect, a bit of an irony saying, they deserve a chance to reverse me, to reverse me, to reverse our decision on Padilla. You can't stop in the middle. You can't call timeout.


    And judges don't often ask for their decisions to be reviewed.


    No, of course not. They don't like that. But he — he suggested there was a stronger principle at work here.


    Did Judge Luttig conclude that the administration in his opinion — conclude that the administration was trying to avoid high court review?


    He was quite careful and punctilious about his language. He kept saying this was the appearance of it. He said I don't know why they did it because they haven't told us.

    Judge Luttig and the three-judge panel asked the government to explain its behavior. And it only came in with a brief that said it's moot now, there's not a problem. We want him transferred.

    So in terms of the writing, it was — the craftsmanship of the writing was quite intriguing. He did not assert that they were misbehaving but he made his judgments quite clear.


    But by winning a point against the Bush administration, Padilla and his legal team end up with their client still in the brig in Charleston.


    Yes. But they still have the opportunity to have it, which was what they had wanted, be reviewed by the Supreme Court.

    But you are quite right, at the end of that, the government can turn around and say no, well, we want to try him in the civilian court on these terrorism charges.

    But this — this is what Mr. Padilla's lawyers had sought.


    Neil Lewis, thanks for being with us.


    Thank you, Ray.

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