Published January 13, 2015
Lawyers for Jose Padilla, a U.S. citizen held as an enemy combatant for 3 1/2 years, said Friday he wants to stay in military custody until the Supreme Court decides whether to hear his challenge to President Bush's power to detain Americans when the nation is at war.
The lawyers urged the high court to reject a request filed Wednesday by Solicitor General Paul Clement seeking Padilla's immediate transfer from the custody of the military to law enforcement authorities in Florida.
The Bush administration wants the high court to overturn last week's decision by the Richmond-based 4th U.S. Court of Appeals, which refused to transfer Padilla and sharply criticized the government's tactics in the lengthy case.
The 4th Circuit took the administration to task for using one set of facts before the courts to justify Padilla's detention without charges and another to persuade a grand jury in Miami to indict him last month on terrorism-related charges.
"What the government clearly wants is for this court to reject the 4th Circuit's strong criticism of the government's conduct," Padilla's lawyers wrote in a response requested by the high court.
Padilla's lawyers accused the administration of trying to bypass normal judicial procedures. By getting Padilla transferred quickly to civilian custody, they argue, the government is attempting to bolster its argument that his broader challenge of presidential power is moot.
They said the high court "should not decide in a matter of hours or days" an issue that raises such heady constitutional questions. Instead, Padilla's lawyers asked the justices to put off the transfer issue until they discuss in mid-January whether to hear Padilla's overall challenge to the president's authority.
At issue is whether Bush and his advisers have taken too broad a view of his authority under the Constitution's war powers provision.
Clement, in his request for Padilla's immediate transfer, took aim at the appellate decision written by Judge J. Michael Luttig, a widely respected conservative who had warned the administration that its changing tactics were putting its credibility at risk.
The appeals court decision "defies both law and logic," Clement said, and was "an unwarranted attack on the exercise of executive discretion."
Padilla, a former Chicago gang member, was arrested in 2002 at Chicago's O'Hare Airport as he was on his way home from Afghanistan. At the time, then-Attorney General John Ashcroft alleged that Padilla was planning to detonate a radiological device known as a "dirty bomb."
Administration lawyers later argued before federal courts in Virginia and New York that Padilla was part of an al-Qaida-backed plot to blow up apartment buildings in New York, Washington or Florida.
Last month, a grand jury charged Padilla with being part of a North American terrorism cell that raised funds and recruited fighters to wage violent jihad outside the United States.
In their filing Friday, Padilla's lawyers wrote, "At the tail end of more than three years of nearly incommunicado military detention, Padilla is content to wait two more weeks in order to have his transfer approved through normal judicial processes."