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Administration heads off legal showdown over executive powers

WASHINGTON—The Justice Department's decision to indict Jose Padilla is the latest example of how the Bush administration short-circuits any legal review of the expansive powers it has claimed in the war on terror, legal experts said Tuesday.

In the Padilla case, the administration wanted to prevent a showdown in the Supreme Court over whether the president legally can hold a U.S. citizen indefinitely without criminal charges by declaring him an enemy combatant.

The Justice Department faced a Monday deadline for filing an argument urging the Supreme Court not to review the Padilla case. Many legal experts expected the court to take the case and resolve the issue of presidential authority.

One staunch defender of the administration said the dramatic shift suggested that the Justice Department may have lost confidence in its legal arguments in the enemy combatant case.

"I think this is a sign of fear that they would lose," said David Rivkin, who has worked in the Justice Department for Republican administrations. "But there is no way the Supreme Court was going to order the release of someone like Padilla."

The Bush administration has taken similar actions in cases that seemed likely to resolve issues of the president's authority.

Last year, in a related case, the Supreme Court ruled that while the president has the authority to hold citizens as enemy combatants, it said that there needed to be more due process in the system and indicated that some restrictions on the president's authority were possible. It ordered a lower court to consider the case anew.

But when lower courts were about to examine the case of Yaser Hamdi—who had grown up in Saudi Arabia but had been born in the United States and was being held in a Navy brig—the military released him and allowed him to return to Saudi Arabia rather than face a challenge in court.

In June 2004, when the Supreme Court ruled that prisoners at the U.S. prison camp for suspected terrorists at Guantanamo Bay, Cuba, had the right to contest their captivity in court, the Defense Department hastily organized non-judicial hearings for each detainee, then argued that federal judges didn't need to get involved.

With those cases before the U.S. Court of Appeals in Washington, the administration is now backing a move in Congress to sharply restrict detainees' access to courts.

"The administration only changes when things get hot in the courthouse," said Eugene Fidell, the president of the nonpartisan National Institute of Military Justice.

Scott Silliman, an expert on national security law at Duke University, said the administration's decision on Padilla "clearly is an exercise in damage control to avoid an adverse legal decision."

There's still a chance that the Supreme Court could take the Padilla case to settle the issue, but Silliman said that was unlikely. Attorney General Alberto Gonzales said the case before the court is now "moot."

"The pattern is they look for ways to minimize the legal challenge in these cases," Silliman said.

The administration also avoids other difficult issues by prosecuting Padilla on charges different from the allegations that led to his enemy combatant status.

One is the use of statements he might have made while in military custody with almost no access to a lawyer. A judge might rule such statements inadmissible at trial. Justice Department officials said the charges filed Tuesday won't require them to use Padilla's statements.

Another is that Tuesday's charges won't involve al-Qaida members who've been subject to harsh interrogation techniques while in custody.

One Guantanamo detainee, Mohamed al-Kahtani, who was subjected to harsh techniques, "clarified Padilla's relationship with al-Qaida," the Defense Department said in June. Al-Kahtani's interrogation at Guantanamo prompted an FBI agent there to complain about his treatment.

For three and a half years the administration portrayed Padilla as a "dirty bomber" in training, then as someone planning to blow up apartment buildings in the United States. Officials argued that the Padilla case represented a grave threat to national security that couldn't be handled by the courts.

On Tuesday the Justice Department charged him with something different—conspiracy to "murder, maim and kidnap" people overseas—to be tried in federal court after all.

Rivkin, a former Justice Department lawyer who has backed the administration's use of broad wartime powers, said that indicting Padilla on conspiracy was like getting mobster Al Capone on tax evasion:

"There's nothing wrong with that legally, but the problem is symbolism. They were extolling the necessity of doing this (holding him as an enemy combatant), then they try him for a lesser offense. Will people believe similar protestations in the future? Will judges take their assurances?"

Fidell was even more critical: "There's a disquieting disconnect between the way Padilla was depicted originally and these current allegations."

Taking Padilla from the criminal system to military custody and then back to criminal court "is a weird merry-go-round that does not inspire confidence in the system," Fidell said.

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(Davies reports for The Miami Herald.)

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(c) 2005, Knight Ridder/Tribune Information Services.

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