Justices Are Asked to Act on Padilla

The Justice Department asked the Supreme Court on Wednesday to intervene in the case of alleged “dirty bomb” plotter Jose Padilla, 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 D. Clement petitioned the nation’s highest 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 did more than ask for a simple transfer of Padilla, who is a U.S. citizen, from military to civilian custody. Some said the case ultimately could set precedent over an array of legal disagreements between the White House and civil liberties advocates, particularly over the administration’s aggressive use of executive power without seeking prior approval from the courts or Congress.

Last week, the U.S. 4th Circuit Court of Appeals in Richmond, Va. -- 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.

That opinion, written by Judge J. Michael Luttig, was considered by legal experts to be a major setback for the administration, in part because Luttig is considered to be one of the most conservative appeals court judges on one of the most conservative appellate courts in the nation. Luttig had been considered by Bush as a potential U.S. Supreme Court nominee

On Wednesday, the solicitor general, acting at the behest of the White House, contended in 27 pages of legal arguments that the appeals court had overstepped its authority when it blocked Padilla’s transfer, and that in the process it had wrongly challenged a sitting president’s right during wartime to protect the nation from a new and dangerous enemy.

“The 4th Circuit’s order defies both law and logic,” Clement wrote in his petition. “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 high court and asked its nine justices 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 high court’s ruling was crucial because of the amorphous and drawn-out nature of the war on terrorism. They noted that their client had been held incommunicado and stripped of his constitutional rights for more than three years.

In their brief, Newman and Patel also cited the current National Security Agency domestic spying controversy as another example of illegal and unchecked abuses of power by the Bush administration in its response to the Sept. 11 terrorist attacks. They argued that the NSA case underscored the need for the court to step in “to preserve the vital checks and balances” on the president.

Carl Tobias, a law professor at the University of Richmond in Virginia who monitors terrorism litigation, said that taken together, the two petitions made it more likely that the Supreme Court would hear the Padilla case on its merits and possibly issue a ruling that would set precedent on a broader group of issues.

Tobias said Wednesday’s petition by the solicitor general was as notable for its combative language as last week’s ruling by the 4th Circuit. Both sharply worded legal briefs, he said, reflected the high stakes and charged emotions associated with the case and with the struggle between the administration and other branches of government over what is an appropriate use of presidential power.

“That’s the nub of this issue,” Tobias said. “Whether there is a pattern of unilateral executive action without approval or consultation with the other two branches of government.”

The Justice Department’s court motion was the latest twist in Padilla’s legal odyssey through the civilian and military court systems.

Padilla -- who pronounces his name “puh-DILL-uh” -- 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 Qaeda operatives. Padilla was arrested after stepping off a plane from Pakistan to Chicago in June 2002, and was immediately designated an enemy combatant.

The government is constitutionally forbidden from arresting and holding people in the U.S. without due process of law. However, as part of the fight against terrorism, President Bush has asserted that his power as commander in chief allows him to designate people as enemy combatants and imprison them indefinitely without filing charges.

John Ashcroft, who was attorney general when Padilla was arrested, initially described Padilla as a central player in an unfolding terrorist operation in which Al Qaeda operatives would wrap low-level radioactive materials around explosives to make dirty bombs and then detonate them on U.S. streets.

Since then, Padilla has become the public face of an escalating and often contentious clash between the White House and civil rights advocates and others over whether he is innocent and whether he has been unfairly stripped of his constitutional rights.

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

U.S. officials said that did not mean they were backing away from the allegations. They said in interviews with The Times that they had downgraded the charges in the federal court case because they could not present in a civilian court the classified evidence backing up the more serious allegations.

In its Dec. 21 ruling blocking Padilla’s transfer to federal authorities, the three-judge appeals court panel said it was concerned that the Justice Department might have decided to prosecute Padilla as a way of averting a Supreme Court ruling on the president’s ability to detain him indefinitely.