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Bush administration seeks to avoid Supreme Court showdown

WASHINGTON—The Bush administration on Friday tried to convince a federal appeals court that the Supreme Court shouldn't review the government's decision to imprison a U.S. citizen as an enemy combatant in the war on terrorism for more than three years without charging him with a crime.

In a dramatic change of course, the administration argued that the appellate court ruling that had allowed the government to jail Jose Padilla indefinitely was now moot because he's now been charged.

The Justice Department claimed that Padilla is a terrorist who wanted to explode a radioactive bomb and blow up apartment buildings in the United States. Last month, however, the Justice Department charged Padilla only with lesser crimes, prompting judges on the 4th Circuit Court of Appeals in Richmond, Va., to demand an explanation for the shift.

The administration's action on Friday is intended to avert a Supreme Court showdown over its claim that the government can hold suspected terrorists indefinitely, without charges, by designating them enemy combatants. The administration has used that designation to imprison Padilla and hundreds of other suspected terrorists captured in Afghanistan and elsewhere.

In its filing to the appeals court, the Justice Department said: "Narrowing the charges would avoid sensitive evidentiary issues that may implicate core national security concerns and constitutional issues."

Some of the evidence that Padilla wanted to mount a "dirty bomb" attack was obtained from other suspected al-Qaida terrorists who've been held in CIA, military or foreign prisons and may have been subjected to cruel or inhumane treatment that U.S. officials may not want to discuss in open court.

Since Padilla was arrested in June 2002, critics of the administration have charged that the government overstepped its authority—particularly in the case of a U.S. citizen—by not filing any charges or permitting a combatant to challenge his imprisonment. Earlier, a federal district court judge had ruled that Padilla should be criminally charged or else released.

The Richmond appeals court reversed that ruling and sided with the administration.

Several legal and national security experts described the government's filing as a retreat in the biggest test case of executive wartime authority.

"It's a crying shame that they're doing this," said David Rivkin, a defender of the administration's expansive use of the laws of war rather than the criminal justice system to handle terrorist suspects.

"There are legal reasons why they are doing this, but there is also perception and politics, and now judges will be more skeptical of government claims" about using enemy combatant status, said Rivkin, who served in the Reagan administration Justice Department.

The administration avoided another legal test of the enemy combatant issue by releasing Yaser Hamdi, another U.S. citizen, after the Supreme Court ruled in 2004 that while the executive had the authority to hold him as a combatant, Hamdi could challenge that in court.

In 2002, top Bush officials called Padilla, a 35-year-old former gang member in Chicago and South Florida, "a grave danger to national security," an al-Qaida plotter whose case was so sensitive it couldn't be handled in criminal court. He's been held in a Navy brig in Charleston, S.C., ever since.

Last month, Attorney General Alberto Gonzales announced that Padilla had been indicted on unrelated charges with four other men in a plot to assist terrorists overseas. The indictment didn't mention a specific attack or link the men directly to al-Qaida.

Gonzales didn't explain or defend the shift, and it wasn't clear whether Padilla was still considered an enemy combatant. But three appellate judges on the 4th Circuit delayed Padilla's transfer and asked the Justice Department why it used "different facts" in the indictment from those it had cited for holding Padilla more than three years without charges.

The judges included Michael Luttig, a favorite of conservatives who's been considered for the Supreme Court. The judges said that they supported presidential authority in September because they accepted as facts that Padilla was a dangerous terrorist who'd taken up arms in Afghanistan, plotted with top al-Qaida leaders and returned to the United States to destroy targets.

"It is only on these facts that we consider whether the president has the authority to detain Padilla" as an enemy combatant, the judges said.

The Supreme Court is considering a review of the case, but Gonzales said that was now "moot" and unnecessary now that Padilla is a criminal defendant.

Nonetheless, Padilla's lawyers have asked the Supreme Court to review the enemy combatant issue because they say the government could designate Padilla as an enemy combatant again, even if he's acquitted.

A government lawyer "told me they maintained they still had that power," Jonathan Freiman, a Padilla lawyer, said Friday.

The brief filed on Friday by administration lawyers said that while the president retains the power to designate any citizen as an enemy combatant, it was "unlikely" that would happen again to Padilla.

Jenny Martinez, another lawyer for Padilla, refused to comment on the latest development, saying that defense attorneys will file their response next week.

"The government is going to lose a very good ruling to avoid having this go before the Supreme Court," said Carl Tobias, a University of Richmond law professor who's closely followed the case.

"This means the issue of whether you can hold a citizen 3 { years without charges will likely be unresolved, which is of great concern to many," Tobias added.

Scott Silliman, an expert on national security law at Duke University, said the administration was trying to preserve flexibility in future cases by effectively "undesignating" Padilla as an enemy combatant.

Rivkin said the administration was in a bind because the three appellate judges delayed the transfer of Padilla.

"You can't find a judge more respectful of executive power than Michael Luttig, and he and the other judges wanted to know why, after three years, they are switching gears without a by-your-leave on something so serious," Rivkin said.

The decision to shift Padilla from enemy combatant to criminal defendant also drew criticism this week from Sen. Arlen Specter, R-Pa., and chairman of the Senate Judiciary Committee.

He said he was making a "formal inquiry" of the way the Justice Department has handled the case.

"I think there's a real question raised when you hold a citizen for 3 { years on a charge that he's going to explode a dirty bomb, and then, when the Supreme Court is considering taking jurisdiction of the case, to withdraw. That troubles me," Specter said.

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(Davies is a Washington correspondent for The Miami Herald.)

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

ARCHIVE PHOTOS on KRT Direct (from KRT Photo Service, 202-383-6099): Jose Padilla

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