New York Times
December 21, 2005
WASHINGTON, Dec. 21 - A federal appeals court delivered a stunning rebuke to the Bush administration today, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges in criminal court.
In denying the administration's request, the three-judge panel also said a strongly worded opinion that the Justice Department's attempt to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration might be jeopardizing its credibility before the courts in terrorism cases.
What made today's action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who had provided the administration with a major court victory in September, saying that President Bush had the authority to detain Mr. Padilla, an American citizen, as an enemy combatant.
But the judges were clearly angered when the Bush administration suddenly shifted course on Nov. 22, saying it no longer needed that authority because it had decided to try Mr. Padilla in a civilian court. The government said that as a result of the shift, it was no longer necessary for the Supreme Court to review the issue of whether Mr. Bush could detain an American citizen indefinitely as an enemy combatant. Many legal analysts interpreted the sudden change in approach as an effort to avoid a Supreme Court review of the Fourth Circuit ruling.
In today's opinion, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding the detention of Mr. Padilla for more than three years in a military brig as an enemy combatant.
Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to government's requests because that would compound what is "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."
Judge Luttig wrote that the timing of the government's decision to switch Mr. Padilla from military custody to a civilian criminal trial just as the Supreme Court was considering the case has "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court."
Carl W. Tobias, a professor at the University of Richmond Law School who has written about the government's legal strategy in terrorist cases, said today's ruling was extraordinary.
"It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," he said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill-used in expending their legitimacy to Mr. Bush's action, only to have the government turn its back on their ruling.
Tasia Scolinos, a spokesman for the Justice Department, said in a statement: "We are disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him. The president's authority to detain enemy combatants, which the Fourth Circuit has upheld, should not be viewed as an obstacle to an exercise of the government's undoubted authority to prosecute federal crimes, including those related to terrorism."
Ms. Scolinos said the department was considering what to do in light of the court's refusal to authorize the transfer of Mr. Padilla.