"at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."
http://www.nytimes.com/2005/12/22/politics/22padilla.html December 22, 2005 Court Refuses U.S. Bid to Shift Terror Suspect By NEIL A. LEWIS WASHINGTON, Dec. 21 - A federal appeals court delivered a sharp rebuke to the Bush administration Wednesday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges. In denying the administration's request, the three-judge panel unanimously issued a strongly worded opinion that said the Justice Department's effort to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration's behavior in the Padilla case could jeopardize its credibility before the courts in other terrorism cases. What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who in September had provided the administration with a sweeping court victory, saying President Bush had the authority to detain Mr. Padilla, an American citizen, indefinitely without trial as an enemy combatant. But the judges were clearly angered when the administration suddenly shifted course on Nov. 22, saying it no longer needed that authority because it now wanted to try Mr. Padilla in a civilian court. The move came just days before the government was to file legal papers in Mr. Padilla's appeal to the Supreme Court. The government said that as a result of the shift, the court no longer needed to take up the case. Many legal analysts speculated at the time that the administration's sudden change in approach was an effort to avoid Supreme Court review of the Fourth Circuit ruling. In the opinion on Wednesday, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding Mr. Padilla's detention for more than three years in a military brig as an enemy combatant. Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to the government's requests because that would compound what was "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court." Judge Luttig wrote that the timing of the government's decision to switch Mr. Padilla from military custody to a civilian criminal trial, just as the Supreme Court was considering the issue of the president's authority to detain him as an enemy combatant, had "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court." Prof. Carl W. Tobias of the University of Richmond Law School, who has written about the government's legal strategy in terrorist cases, said that the ruling on Wednesday was an extraordinary rebuff to the Bush administration by the judicial branch. "It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," Professor Tobias said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill used in expending their institutional capital in support of Mr. Bush's action only to have the government decide that it no longer wanted the authority that it had sought so strongly. Tasia Scolinos, a spokesman for the Justice Department, said in a statement: "We are disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him. The president's authority to detain enemy combatants, which the Fourth Circuit has upheld, should not be viewed as an obstacle to an exercise of the government's undoubted authority to prosecute federal crimes, including those related to terrorism." Ms. Scolinos said the department was considering what to do in light of the court's refusal to authorize the transfer of Mr. Padilla. The likely outcome of the appeals court panel's decision, some lawyers believed, was that the Supreme Court would be obliged to consider the case. Jonathan M. Freiman, a lawyer for Mr. Padilla (pronounced puh-DILL- ah), said that the appeals court "seems to have agreed with what we asserted in our brief, that the government has been attempting to evade Supreme Court review." Mr. Padilla, a former Chicago gang member who converted to Islam and who, officials say, traveled to the Middle East and offered his services to terrorist organizations, was arrested at O'Hare International Airport on May 8, 2002. Government officials initially portrayed him as someone who was considering a plot to explode a radioactive "dirty bomb" in some American city and then to destroy gas lines to destroy public buildings. In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan. Although Judge Luttig was careful in his opinion to avoid flatly asserting that the government had misbehaved, his skepticism about its behavior was unmistakable. He used the word "appearance" several times in explaining why he believed the government's approach in the Padilla case raised suspicions. Judge Luttig said the government might not have fully considered the consequences of its approach, "not only for the public perception of the war on terror but also for the government's credibility before the courts in litigation." He said the government "must surely understand" that it has left the impression that Mr. Padilla may have been held for more than three years by mistake. Judge Luttig was joined by Judges M. Blane Michael and William B. 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