Padilla indictment avoids high court showdown

updated 7:36 p.m. ET Nov. 22, 2005

WASHINGTON - Jose Padilla, a U.S. citizen held in a Navy brig as an enemy combatant for more than three years, was charged Tuesday with being part of a North American terrorist cell that sent money and recruits overseas to “murder, maim and kidnap.”

However, absent from the indictment were the sensational allegations made earlier by top Justice Department officials: that Padilla sought to blow up U.S. hotels and apartment buildings and planned an attack on America with a radiological “dirty bomb.”

Attorney General Alberto Gonzales wouldn’t say why none of those allegations were included in the indictment, commenting only on the charges that were returned by a Miami grand jury against Padilla and four other alleged members of a terror cell.

“The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad,” Gonzales said.

The latest twist
The charges are the latest twist in a case pitting the Bush administration’s claim that the war on terrorism gives the government extraordinary powers to protect its citizens, on one side, against those who say the government can’t be allowed to label Americans “enemy combatants” and hold them indefinitely without charges that can be fought in court.

By charging Padilla, the administration is seeking to avoid a Supreme Court showdown over the issue. In 2004, the justices took up the first round of cases stemming from the war on terrorism, and Justice Sandra Day O’Connor, who is retiring, wrote, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

Eric Freedman, a professor at Hofstra Law School, said the Padilla indictment was an effort by the administration “to avoid an adverse decision of the Supreme Court.”

Manuel Balce Ceneta / AP Attorney General Alberto Gonzales, with FBI Assistant Director John Pistole, left, announces the indictment of Jose Padilla on Tuesday at a news conference at the Justice Department in Washington.

Jenny Martinez, a Stanford law professor who represents Padilla at the Supreme Court, said, “There’s no guarantee the government won’t do this again to Mr. Padilla or others. The Supreme Court needs to review this case on the merits so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.”

Padilla’s lawyers had asked the justices to review his case last month, and the Bush administration was facing a deadline of next Monday for filing its legal arguments.

‘Double, triple hearsay’ alleged by defense
Padilla’s appeal argues that the government’s evidence “consists of double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation.”

Gonzales said there no longer was an issue for the justices to resolve since Padilla would have his day in court. However, the attorney general would not rule out that Padilla could be reclassified as an enemy combatant at some point.

Padilla will be transferred from military custody to the Justice Department and will be held at a federal prison in Miami. Gonzales said the case would go to trial in September, in Miami.

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