U.S. Wins Court Ruling in ‘Dirty Bomb’ Case

A federal appeals court ruled Friday that Jose Padilla, held for more than three years after federal officials said he planned to set off radiological devices, or “dirty bombs,” could be detained indefinitely without trial.

The unanimous decision by a panel of the U.S. 4th Circuit Court of Appeals significantly boosts the Bush administration’s program of jailing key Al Qaeda and Taliban suspects without filing criminal charges or holding trials -- whether the detainees were Americans arrested in the U.S. or citizens of other countries seized abroad -- in an effort to squeeze intelligence information from alleged terrorist operatives.

The ruling could have major implications for detainees at the U.S. naval base at Guantanamo Bay, Cuba, where many, like Padilla, have been deemed “enemy combatants.” Judge J. Michael Luttig wrote the decision for the three-member panel in Richmond, Va. He is considered to be on President Bush’s short list of candidates to fill a vacancy on the Supreme Court.

Padilla’s attorneys plan to appeal the ruling to the high court. If they do not prevail, Friday’s ruling apparently would seal Bush’s controversial use of executive authority to skirt the U.S. courts.

“The court’s ruling effectively declares the entire world, including the United States, to be a battlefield subject to military jurisdiction, where American citizens can be stripped of their constitutional rights,” said Deborah Pearlstein, director of the U.S. law and security program at Human Rights First, an advocacy group in New York and Washington.

At the heart of the White House argument to indefinitely detain half a dozen terrorist suspects in this country, as well as the captives at Guantanamo Bay, was the fear that they could be acquitted at trial and then released.

The Authorization for Use of Military Force joint resolution, which Congress enacted after the Sept. 11 attacks, allows the president to indefinitely detain suspected terrorists “in order to prevent any future acts of international terrorism against the United States,” the appeals court said.

Equally important, administration officials said, was the need to interrogate suspects to learn about potential attacks.

In Padilla’s case, Atty. Gen. Alberto R. Gonzales indicated Friday that his continuing incarceration had paid off in new U.S. intelligence about terrorist activities.

“Multiple intelligence sources separately confirmed Padilla’s involvement in planning future terrorist attacks against the United States with Al Qaeda leaders,” Gonzales said.

Those alleged targets are believed to have been apartment buildings and gas stations in the United States; the weapons allegedly being developed were radiological dispersal devices, or dirty bombs.

Despite the government’s determination to keep Padilla locked up, his chief attorney, Donna Newman of New York, said she never sought his automatic release from a Navy brig in Charleston, S.C. Rather, she said, she wanted the government to try him. “They’re not giving him a chance to fight this,” she said. “They’re telling him he’s going to be held forever, that he has no rights. What they’re saying is worse than a life sentence.”

Carl Tobias, a professor at the University of Richmond School of Law, questioned what intelligence Padilla could provide after more than three years in jail, because many terrorist operatives he is believed to have known, among them Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks, have also been arrested.

“Why not go ahead and prosecute him?” Tobias asked. “What is there more to get from him? Except to make an example of him.”

Tobias also questioned whether Luttig should have recused himself from the case, given his potential nomination to the Supreme Court. Luttig’s situation parallels that of Judge John G. Roberts Jr., who recently participated in an appellate court ruling that allowed the administration to conduct military tribunals at Guantanamo Bay. At the time the ruling was issued, Roberts was being considered for a Supreme Court vacancy. On Monday, Bush nominated him to be chief justice of the United States.

Padilla, 34, was born in New York and raised in Chicago. As an adult in South Florida, he embraced Islam and moved to the Middle East and Central Asia.

According to Friday’s legal opinion, which included information provided by the government, Al Qaeda operatives recruited Padilla to train for jihad in Afghanistan in February 2000, while he was on a religious pilgrimage to Saudi Arabia.

He met Al Qaeda leaders, was taught how to build and detonate explosives, and served as an armed guard “at what he understood to be a Taliban outpost” in Afghanistan, the ruling said.

After the Sept. 11 attacks, when the United States invaded Afghanistan, “Padilla and other Al Qaeda operatives moved from safe house to safe house to evade bombing or capture,” the opinion said. He eventually escaped to Pakistan, armed with an assault rifle.

There, he met with Mohammed, who “directed Padilla to travel to the United States for the purpose of blowing up apartment buildings, in continued prosecution of Al Qaeda’s war on terror against the United States.”

“After receiving further training, as well as cash, travel documents and communication devices, Padilla flew to the United States in order to carry out his accepted assignment,” the ruling said.

Padilla landed at Chicago’s O’Hare International Airport on May 8, 2002. He was then arrested by FBI agents and sent to New York, where he was held on a material witness warrant.

On June 9, 2002, Bush designated him an “enemy combatant” and he was moved to the Navy brig in South Carolina.

In February, U.S. District Judge Henry F. Floyd, appointed two years ago by Bush, ruled that the government must charge Padilla or set him free. Stating that Americans have the right to due process of law, the judge found that Padilla’s “indefinite detention without trial” violated his constitutional rights.

The appeals court panel said Friday that Padilla posed a real threat of returning someday “to the battlefield against the United States” and that his “detention “is thus necessary and appropriate.”

The president, the ruling said, “is unquestionably authorized” to hold him without charges or trial.