Judge Rules Terror Suspect Must Be Charged or Freed

By Richard A. Serrano

Los Angeles Times

March 1, 2005

WASHINGTON — A federal judge on Monday ordered the Bush administration to either charge or release an American suspected of plotting terrorist attacks with Al Qaeda, saying that his continued confinement after nearly three years would "only offend the rule of law."

The case of Jose Padilla has drawn unusual attention because it pits the rights of a U.S. citizen against the powers of the government to fight the war on terrorism. The government contends that by designating Padi lla an "enemy combatant" — not a criminal defendant — and putting him in military custody, it can hold him without charge indefinitely.

He was deemed to be an enemy combatant by President Bush in June 2002, a month after his arrest at Chicago's O'Hare International Airport. Officials accused him of participating in a plan to detonate a radioactive "dirty bomb" in the United States.

Federal prosecutors had hoped to keep the New York native behind bars in an attempt to learn all they could about his reported ties to Al Qaeda and his alleged attempt to scout targets for attack in the U.S..

But Monday's ruling by U.S. District Judge Henry F. Floyd found that Padilla's "indefinite detention without trial" violated his constitutional right to due process and ordered the administration to release him or charge him within 45 days.

"Great decision," said Donna Newman, a New York lawyer representing Padilla. "The Constitution is alive and well and kicking."

Government lawyers, who had no immediate reaction to the order, are likely to appeal the ruling quickly and forestall any immediate release of the man they have portrayed as a grave threat to American security.

The judge noted that prosecutors could either file criminal charges against Padilla within 45 days or declare him a "material witness" to a crime involving other terrorists and hold him in connection with that case.

Floyd, who was appointed by Bush in 2003, rejected the government's position that Padilla was an "enemy combatant" because he was captured during the ongoing war against terrorism.

"The president has no power," the judge said, "neither express nor implied, neither constitutional nor statutory, to hold [Padilla] as an enemy combatant."

Eugene R. Fidell, president of the National Institute of Military Justice, said Monday that Floyd's ruling was illustrative of what he called "the revolt of district judges" who were disturbed by the government's handling of terror suspects.

"District judges are used to dispensing justice to people in front of them," Fidell said. "They are down where the rubber meets the road in the administration of justice in this country, and they bring a special perspective. And they have found ways to express their discomfort."

Padilla was arrested in May 2002 at O'Hare after returning from Pakistan.

Soon afterward, then-Atty. Gen. John Ashcroft held a news conference during which he labeled Padilla a dedicated soldier for Al Qaeda who had betrayed the U.S. to fight for Osama bin Laden.

Ashcroft said the government had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb.' "

"Al Qaeda officials knew that as a U.S. citizen holding a valid U.S. passport, [Padilla] would be able to travel freely in the United States without drawing attention to himself," Ashcroft said.

Ashcroft further accused Padilla of returning to the United States to look for targets for a plotted chemical attack.

Padilla was held for a short time on a material witness warrant in connection with the investigation of the Sept. 11, 2001, attacks. In June 2002, Bush designated him an enemy combatant and directed that he be placed in military custody. Padilla then was moved to a military base in Charleston, S.C.

Floyd, who presides in Spartanburg, S.C., heard Padilla's claim that his constitutional rights were being violated. Key to his ruling Monday was the case of another U.S. citizen who had been held as an enemy combatant.

Yaser Esam Hamdi, born in Louisiana to Saudi parents, held dual citizenship. He was detained for several years — first at Guantanamo Bay, Cuba, then at Navy brigs in Norfolk, Va., and Charleston — until his release last year.

Like Padilla, he was designated an enemy combatant and held without criminal charges. But unlike Padilla, Hamdi was captured on the battlefield in Afghanistan, fighting for the Taliban and against the United States.

Hamdi's case made its way last summer to the U.S. Supreme Court, which ruled that the government had to charge him with a crime or release him. The Justice Department decided that he was no longer of value to intelligence officials, and he was allowed to return to Saudi Arabia after forfeiting his U.S. citizenship and agreeing to certain travel restrictions.

In Padilla's case, his lawyers argued before Floyd that the president's inherent constitutional powers did not allow him to subject U.S. citizens who were arrested in the United States to "indefinite military detention."

They also maintained that Congress never authorized that kind of indefinite confinement without trial for U.S. citizens.

Padilla grew up in Chicago, where he was arrested numerous times as a juvenile for gang activity. As an adult, he moved to Florida, married and turned to Islam. He then left his family and traveled throughout the Middle East.

The government told the judge that the president did have "constitutional authority" to detain Padilla, and cited the Hamdi case as evidence that the Bush administration was within its rights to hold Padilla indefinitely.

But the judge determined that "just because something is sometimes true, [it] does not mean that it is always true." He then cited major inconsistencies between the Hamdi and Padilla cases.

"The differences between the two are striking," he said.

He noted that a federal appellate judge earlier had found that "to compare the battlefield capture [of] Hamdi to the domestic arrest [of] Padilla is to compare apples and oranges."

Padilla, Floyd said, "is an American citizen" and "was captured in a United States airport. He is, in some respects, being held for a crime that he is alleged to have planned to commit in this country."

The judge said that the "president's use of force to capture Hamdi" on the Afghan battlefield "was necessary and appropriate." But, he said, referring to Padilla's arrest in Chicago, "that same use of force was not."

Padilla's "alleged terrorist plans were thwarted at the time of his arrest," Floyd added. "There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing."

Using that argument, the judge wrote some of the sternest language in his order:

"This court is of the firm opinion that it must reject the position of the [government]. To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."

In the past, the military has stressed that Padilla needed to be locked up indefinitely — and kept from defense lawyers and courtrooms — because intelligence officers were hoping to break him down in interrogations and glean information to prevent future attacks. It is on that basis that the government is likely to appeal the ruling.

But Newman, Padilla's lawyer, said: "We will continue to fight for our rights too, and his."