Justices Are Urged to Dismiss Padilla's Case

By LINDA GREENHOUSE

New York Times

December 17, 2005

WASHINGTON, Dec. 17 - It would be "wholly imprudent" for the Supreme Court to hear Jose Padilla's challenge to his military detention as an enemy combatant, the Bush administration told the court in urging the justices to dismiss Mr. Padilla's case as moot now that the government plans to try him on terrorism charges in a civilian court.

In a brief filed late Friday, the administration argued that Mr. Padilla's indictment last month by a federal grand jury has given him the "very relief" he sought when he filed a petition for writ of habeas corpus in federal court. Any Supreme Court decision now on his petition, which a federal appeals court rejected in September, "will have no practical effect" on Mr. Padilla, the brief said.

Lawyers for Mr. Padilla, a United States citizen who was arrested at O'Hare airport in Chicago in May 2002 and transferred to military custody, filed his Supreme Court appeal in October. Ordinarily, the court would have acted by now, but the justices gave the government until Friday to file its response. Mr. Padilla's lawyers will now have a chance to respond to the administration's brief before the court decides early next year whether to hear the case.

As the administration filed its Supreme Court brief, Mr. Padilla's five-member legal team filed a brief with the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., asking that court to keep jurisdiction over Mr. Padilla's case long enough for the Supreme Court to act on it.

For its part, the administration is urging the Fourth Circuit to do just the opposite: to vacate its September decision that upheld presidential authority to keep Mr. Padilla in open-ended detention and to "recall the mandate," depriving the decision of any legal force.

Since the Fourth Circuit had handed the administration a sweeping victory in that decision, the request would seem to run counter to the administration's interests. But the request, if granted, would have the effect of ensuring that the Supreme Court would be unable to review Mr. Padilla's case because there would be no decision to review.

That amounts to "the extraordinary action of interfering with the Supreme Court's consideration of the case" while Mr. Padilla's appeal is pending, his lawyers told the Fourth Circuit. The government should not be allowed to claim the case is moot, the brief said, because the administration has not withdrawn Mr. Padilla's designation as an enemy combatant and has refused to foreclose the prospect of sending him back to military detention if he is acquitted in a civilian trial.

The lawyers told the Fourth Circuit that in its treatment of Mr. Padilla, "the government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions."

If the Supreme Court denies review, the brief continued, the appeals court should recall the mandate and vacate its decision at that point so as not to reward "the government's egregious conduct and gamesmanship in the federal courts."

The unusual dueling briefs in the Fourth Circuit on the status of the case were occasioned by the appeals court's refusal to acquiesce to the administration's request last month to transfer Mr. Padilla's custody from the military to civilian authorities.

Instead, the appeals court ordered the sides to submit briefs on what should become of the September decision "in light of the different facts that were alleged by the president to warrant Padilla's military detention and held by this court to justify that detention, on the one hand, and the alleged facts on which Padilla has now been indicted, on the other."

While administration officials initially maintained that Mr. Padilla was a Qaeda operative on a mission to detonate a "dirty bomb" and blow up apartment buildings, the indictment last month omitted mention of those accusations, instead charging him with providing "material support" to terrorists.