The Bush administration asked the Supreme Court on Wednesday to allow the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, despite an appellate court ruling last week that blocked the move.
The Justice Department said the order blocking Padilla’s transfer to civilian custody represented an “unwarranted attack” on presidential discretion.
In last week’s ruling, the 4th U.S. Circuit of Court of Appeals in Richmond, Va., refused to allow Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terrorist attacks abroad.
The appeals court said the Bush administration, in charging Padilla in criminal court in November after jailing him for more than 3 1/2 years as an enemy combatant without charges, gave the appearance that it was trying to manipulate the 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 Clement, in the administration’s filing Wednesday, said the 4th Circuit’s decision “defies both law and logic,” and he noted that Padilla himself has sought to be transferred to civilian custody.
In unusually caustic language, the solicitor general said that the 4th Circuit did not have the authority to “disregard a presidential directive.”
In a September ruling in the Padilla case, the 4th Circuit affirmed President Bush’s power to hold Padilla, a former Chicago gang member, as an enemy combatant tied to Al Qaeda.
In a filing of their own before the Supreme Court on Tuesday, lawyers for Padilla argued that Bush had overstepped his authority in jailing their client as an enemy combatant without charges.
Padilla, a convert to Islam, traveled through the Middle East and was arrested in May 2002 upon his return to the United States. The Bush administration, in declaring him an enemy combatant and jailing him in a military brig without access to a lawyer, initially accused him of plotting with Al Qaeda to detonate a radiological “dirty bomb” on American streets and plotting other attacks within the United States.
But in bringing criminal charges for the first time against Padilla last month, the administration reversed course and accused him of working to support violent jihad causes in Afghanistan and elsewhere overseas from 1993 through 2001. The criminal charges make no mention of the alleged dirty bomb plot or other U.S. attacks.
