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US Asks Supreme Court to Transfer Terror Suspect
By Eric Lichtblau
The New York Times

Wednesday 28 December 2005

Washington - The Bush administration asked the Supreme Court today to allow for the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, challenging an appellate court ruling last week that blocked the move.

The Justice Department, in an unusually strong criticism of a lower court that has historically been a staunch ally, said the earlier order blocking Mr. Padilla's transfer to civilian custody represented an "unwarranted attack" on presidential discretion.

In last week's ruling, the United States Court of Appeals for the Fourth Circuit in Richmond, Va., refused to allow Mr. Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terror attacks abroad.

The appeals court said that the Bush administration, in charging Mr. Padilla in criminal court in November after jailing him for more than three and a half years as an enemy combatant without charges, gave the appearance that it was trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration's credibility in the courts.

But Solicitor General Paul D. Clement, in the administration's new filing today asking the Supreme Court to take up the custody issue, said the Fourth Circuit's decision "defies both law and logic," and he noted that Mr. Padilla himself had sought to be transferred to civilian custody.

In unusually caustic language, the solicitor general said that the Fourth Circuit did not have the authority to "disregard a presidential directive." And he said its decision blocking Mr. Padilla's transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of Executive discretion, and, if given effect, would raise profound separation-of-powers concerns."

The Fourth Circuit is widely known as one of the most conservative appellate courts in the country, and it has sided with the Bush administration on a number of key issues involving matters of terrorism and national security.

Indeed, in a September ruling in the Padilla case, the Fourth Circuit affirmed President Bush's power to hold Mr. Padilla, a former Chicago gang member, as an enemy combatant tied to Al Qaeda. That opinion was written by Judge Michael J. Luttig, whom President Bush considered for recent Supreme Court vacancies, and it was Judge Luttig who also wrote last week's opinion blocking Mr. Padilla's transfer.

"Nothing in this case surprises me anymore," Donna Newman, one of Mr. Padilla's lawyer, said after the Justice Department's filing in the case today. "This is an unusual turn of events for the Justice Department to come out against the Fourth Circuit like this, because anybody who looks at precedent would see the Fourth Circuit is a very pro-government circuit that generally finds in favor of the government."

The Justice Department's application to the Supreme Court came a day after lawyers for Mr. Padilla, in a filing of their own to the justices, argued that President Bush had overstepped his authority in jailing their client as an enemy combatant without charges.
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