Intellectual Capital: Michael McGough / How do you solve a problem like Padilla?

Bad blood between the Bush administration and a conservative appeals court may require the Supreme Court to step in

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WASHINGTON -- It must have seemed like a good idea at the time. Fearful of another test of presidential power in the U.S. Supreme Court, the Bush administration in November decided to cut its losses and end the 3 1/2-year-long confinement of Jose Padilla as an "enemy combatant."

Michael McGough is an editor at large in the PG's National Bureau (mmcgough@

Mr. Padilla, a Brooklyn-born convert to Islam, was arrested at Chicago's O'Hare Airport in May 2002 and was identified by then-Attorney General John Ashcroft as a participant in an al-Qaida plot to explode a radioactive "dirty bomb" in the United States. A federal appeals court upheld his detention, but Mr. Padilla's lawyers appealed to the Supreme Court.

Then the Bush administration executed a legal U-turn. It secured an indictment of Mr. Padilla by a federal grand jury in Florida on terrorism charges unrelated to a "dirty bomb," announced that he would be transferred from a Navy brig in Charleston, S.C., to a civilian prison in Miami and asked the 4th U.S. Circuit Court of Appeals in Richmond to vacate its decision upholding Mr. Padilla's confinement.

The 4th Circuit, one of the administration's favorite tribunals, wouldn't play. It refused to vacate its order or approve of Mr. Padilla's transfer from military to civilian custody. In an opinion by Judge J. Michael Luttig, a conservative icon often mentioned as a possible Bush appointee to the Supreme Court, the 4th Circuit worried about "an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court."

Last week the administration shot back, demanding that the Supreme Court authorize Mr. Padilla's transfer. In a petition filed with the Supreme Court, Solicitor General Paul D. Clement fumed that "the 4th Circuit's order defies both law and logic" and constituted an "unwarranted attack" on President Bush's authority. Besides, Mr. Clement said, Mr. Padilla's lawyers hadn't objected to transferring their client.

It is true that in an earlier filing with the 4th Circuit, Mr. Padilla's attorneys had indicated that they wouldn't object to the transfer because they could continue to challenge Mr. Padilla's designation as an enemy combatant. But last week they took a different tack.

In a petition filed with the Supreme Court, which is likely to consider Mr. Padilla's appeal this month, the attorneys wrote:

"Padilla is certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years. The government's sudden urgency in demanding his immediate transfer to civilian custody is a bit puzzling, however, in light of its long delay in bringing criminal charges.

"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 ordinary judicial processes, in the hopes that the government's continuing threat to return him to the military prison will eventually be lifted once and for all."

The battle of the briefs between the government and Mr. Padilla's lawyers turns on the proper interpretation of a federal court rule that says prisoners seeking a writ of habeas corpus -- as Mr. Padilla is doing -- ordinarily can't be transferred from one jailer to another. But the larger issue in the turf war between the 4th Circuit and the Bush administration is the same one raised in Mr. Padilla's original legal challenge: the scope of presidential power in the "war on terror."

Last year, in a habeas corpus action brought by Yaser Hamdi, the only other U.S. citizen to be detained as an enemy combatant, eight justices rejected the Bush administration's position that the courts had no oversight over such detentions. "We long have made it clear," Justice Sandra Day O'Connor wrote in the leading opinion in that case, "that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

But the Hamdi decision -- and the fact that there was no majority opinion -- left for another day questions about exactly how much authority the president did have to detain U.S. citizens. Before the Justice Department tried to render it moot, the Padilla case offered the court an opportunity to clarify what it meant in Hamdi.

But the Supreme Court itself may be reluctant to revisit the issue. After all, only two U.S. citizens (that we know of) have been detained as enemy combatants: Mr. Hamdi, who was allowed to move to Saudi Arabia, and Mr. Padilla, who, however belatedly, has been indicted on criminal charges. A third U.S. citizen accused of complicity with terrorists, John Walker Lindh, the so-called "American Taliban," pleaded guilty in federal court.

But the nasty confrontation between the 4th Circuit and the Bush administration over the transfer of Jose Padilla might make the court more amenable to hearing Mr. Padilla's appeal of his designation as an enemy combatant -- which his lawyers argue is not a moot issue because President Bush could return him to that status at any time.

And there is one other development that might incline the court to take the case -- the revelation that the National Security Agency has been intercepting electronic communications involving American citizens. That raises the possibility that Yaser Hamdi and Jose Padilla won't be the last U.S. citizens to be classified as enemy combatants.


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