The Bush administration said Wednesday that it will ask the Supreme Court to quickly reverse a federal appeals court ruling that ordered the release of former Chicago street gang member Jose Padilla, a U.S. citizen who has been held without charges as an “enemy combatant” for about 19 months.
Saying the Dec. 18 decision by an appellate court in New York “undermines the president’s constitutional authority to protect the nation,” the Justice Department said it would ask the Supreme Court within the next two weeks to place the Padilla case on a fast track. It proposed an April hearing in the case.
In the original decision–a major setback for the administration–a three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled 2-1 that the president lacks the power to authorize the military detention of a U.S. citizen arrested on American soil.
Based on intelligence developed from at least one Al Qaeda captive, FBI agents in May 2002 nabbed Padilla, a convert to Islam born in New York, as he stepped off a plane at O’Hare International Airport. After holding him without charges for about a month, and just prior to a scheduled hearing before a federal judge in the case, President Bush authorized Padilla’s military detention.
Padilla ever since has been held incommunicado, and without the constitutional protections afforded criminal defendants, at a naval brig in Charleston, S.C.
Officials have alleged that Padilla was sent to the United States by senior Al Qaeda leaders and that his most likely mission was to launch an attack with a so-called dirty-bomb, an explosive device that spreads radioactive material.
The administration could have asked the 2nd Circuit to reconsider the case but instead will send it directly to the nation’s highest court, Solicitor General Theodore Olson said in court papers Wednesday. The Justice Department wants the Supreme Court to hear the case during its final session of oral arguments in April and on a rushed basis. The court’s calendar already is nearly full.
Quick action is needed because the lower-court ruling “incorrectly resolves issues of extraordinary public significance,” Olson said Wednesday. He said the decision rests on a “novel and erroneous” interpretation of U.S. law.
Donna Newman, Padilla’s court-appointed lawyer, said she had hoped the government would at least have allowed her to visit Padilla before seeking to overturn the ruling. But she also said she might not stand in the government’s way to get the case before the Supreme Court quickly.
“It’s always been my wish to have this resolved as speedily as possible,” Newman said.
Olson revealed the government’s plans to challenge the Padilla ruling in a brief filed Wednesday in a separate case, that of Yaser Esam Hamdi, another U.S. citizen jailed by the military and labeled by the president as an enemy combatant. Justices are scheduled to hold a conference Friday to determine whether they will hear the Hamdi case.
Hamdi was captured on a battlefield in Afghanistan, allegedly fighting for the now-ousted Taliban regime. He is being represented by a Virginia attorney who never has had a right to see his client.
Unlike in the Padilla decision, lower courts have sided with the administration in Hamdi’s case, noting the distinction that he was not arrested on U.S. soil. Olson suggested in court papers Wednesday that the justices may want to weigh the two cases together, even though the government says they present separate issues.
