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Originally published Thursday, December 29, 2005 at 12:00 AM

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U.S. asks justices to transfer Padilla

The Justice Department asked the Supreme Court on Wednesday to intervene in the case of Jose Padilla, a U.S. citizen held as an "enemy...

Los Angeles Times

WASHINGTON — The Justice Department asked the Supreme Court on Wednesday to intervene in the case of Jose Padilla, a U.S. citizen held as an "enemy combatant" for nearly four years, contending that a lower court had no right to tell the Bush administration whether he should be tried in a criminal court or a military tribunal.

U.S. Solicitor General Paul Clement asked the court to overturn a ruling by an appellate court last week that essentially blocked Padilla, 35, from being transferred from a military brig in South Carolina to a federal prison in Miami, where prosecutors intend to try him on terrorism conspiracy charges.

Legal analysts said the strongly worded government petition does more than ask for a simple transfer of Padilla from military to civilian custody. It argues that the 4th U.S. Circuit Court of Appeals in Richmond, Va., overstepped its authority when blocking Padilla's transfer, and in the process wrongly challenged a sitting president's right during wartime to protect the nation from a new and dangerous enemy.

"The Fourth Circuit's order defies both law and logic," Clement wrote. "That unprecedented and unfounded assertion of judicial authority should be undone as expeditiously as possible by this Court."

The government's motion came one day after Padilla's defense lawyers also petitioned the Supreme Court, asking it to use the case to resolve how much unchecked power a president should have when the nation is at war. Lawyers Donna Newman and Andrew Patel said the court's ruling is crucial because of the amorphous and drawn-out nature of the war on terrorism, noting that their client already has been held incommunicado and stripped of his constitutional rights for nearly four years.

In their brief, Newman and Patel also cited the current National Security Agency (NSA) domestic-spying controversy as another example of illegal and unchecked abuses of power by the Bush administration in its response to the Sept. 11 attacks.

Padilla was born in Brooklyn and became a member of a Chicago street gang before converting to Islam and traveling to Pakistan. While there, U.S. officials say, he fell in with senior al-Qaida operatives. Padilla was arrested after stepping off a plane from Pakistan to Chicago in June 2002 and immediately designated an "enemy combatant."

John Ashcroft, then the attorney general, initially accused Padilla of plotting to detonate a radioactive "dirty bomb."

Recently, Padilla's appeal of his designation as an enemy combatant was days away from heading to the Supreme Court when the administration suddenly announced he was being indicted. Prosecutors said they would try him on different charges that didn't include any dirty-bomb allegations — and in a public courtroom rather than a military tribunal.

Last week, the federal appeals court — the same body that upheld the administration's right to designate Padilla as an enemy combatant in the first place — issued a sharply worded ruling that rejected the administration's shift in strategy.

It questioned why the administration used one set of facts before the court for nearly four years to justify holding Padilla without charges but used another set to persuade a grand jury to indict him, and suggested the administration was trying to avoid a Supreme Court ruling on the president's ability to detain him indefinitely.

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