Padilla indicted, may impact Court case
on Nov 22, 2005 at 10:51 am
The federal government has obtained a grand jury indictment in Miami of Jose Padilla, a U.S. citizen who has been held in military custody for three and a half years — a move that potentially could affect Padilla’s pending appeal to the Supreme Court.
This is the highest profile criminal case the government has pursued in the “war on terror” since the slowly developing prosecution of Zacarias Moussaoui for an alleged role in the terrorist attacks of Sept. 11, 2001.
Attorney General Alberto R. Gonzales discussed the Padilla indictment at a press conference on Tuesday, saying the charges link Padilla to “an alleged North American terrorist support cell.”
The Supreme Court would have the option of denying Padilla’s petition, if four Justices did not vote to hear it. But any other action on it — such as a dismissal for any reason, including the fact of the new indictment — would require a majority of five votes because that is the equivalent of a merits decision.
A part of this new legal development was a request to the Fourth Circuit by the Justice Department to authorize Padilla’s release from military custody, so he could be turned over to the warden of a federal prison in Miami. The criminal case could then proceed in civilian courts. The government said Padilla’s lawyers did not oppose that request. Padilla is now being held at the U.S. Naval Brig in Charleston. S.C., where he has been a prisoner since June 2002. On Nov. 20, the government revealed Tuesday, President Bush signed a memo to Defense Secretary Donald Rumsfeld saying it would be in the government’s interest to turn him over to the Justice Department for criminal proceedings.
The indictment actually was a new set of charges, adding Padilla to an existing criminal case in Florida against Adham Hassoun, Mohomed Youssef and Kifah Jayyousi, accused of terrorism-related crimes. Besides adding Padilla, the indictment also named a Canadian national, Kassem Daher.
“All of these defendants,” Attorney General Gonzales said, “are alleged members of a violent terrorist support cell that operated in the United States and Canada….As alleged in the indictment, this cell supported terrorists by sending money, physical assets, and new recruits to overseas jihad conflicts. These defendants also took steps to disguise their fundraising and recruitment activities by speaking in code and using non-governmental organizations as a front for illegitimate activities.” A conviction of the charges could lead to a life prison sentence.
The indictment was returned Nov. 17, and unsealed Tuesday morning. It includes 11 counts against Padilla and the four others, charging them with conspiracy to murder U.S. nationals and providing “material support to terrorists” in North America, according to a Justice Department statement announcing the indictment.
Padilla has been designated an “enemy combatant,” but until now has been held without any charges. His appeal to the Supreme Court raised this first question: “Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?”
A response to the Supreme Court petition from the Justice Department was due next Monday. The Solicitor General is expected soon to suggest to the Court that the appeal is now moot and should not go forward, in view of the new criminal charges. In one of the legal documents released Tuesday, Justice Department lawyers expressly contended that, “because petitioner has been charged with a crime and is being released from military custody, this habeas action is now moot.” That document also said that, when the Solicitor General files a response to Padilla’s Supreme Court petition, the government “will address the impact of these recent events on the certiorari petition.”
Padilla’s attorneys, however, are expected to contest that argument, contending that the underlying issue of presidential power remains a live issue, a question capable of recurring in future cases. The case “is anything but moot,” said Jonathan M. Freiman of the New Haven law firm of Wiggin and Dana, one of Padilla’s attorneys. “The government still claims the power to seize American citizens in civilian settings in the United States and detain them in military prisons indefinitely and without charge. It claims that power over Padilla and it claims that power over every American citizen….It’s a classic case of capable of repetition yet evading review.”
Timothy Lynch, a criminal law expert at the Cato Institute, a libertarian organization in Washington that opposes the Bush Administration’s handling of “enemy combatants,” said in a statement that Tuesday’s indictment “is a clear indication that Mr. Bush’s legal team believe the Supreme Court would declare his ‘enemy combatant’ theory to be illegal. Mr. Padilla has been charged with a crime to keep this litigation away from the Supreme Court.”
Attorney General Gonzales, however, said the criminal charges were brought to show that “we will use every tool at our disposal in vigorously fighting the war on terrorism….This case…is a classic example of why the criminal justice system is one of those important tools.” He said the investigation “has been underway for quite a while now.”
The Bush Administration has already suffered a partial defeat in one case before the Supreme Court involving long-term detention of a U.S. citizen suspected of terrorism — the case of Hamdi v. Rumsfeld. Yaser Esam Hamdi, a citizen, was captured in a battle zone in Afghanistan. The Court’s decision in 2004 ruled that Hamdi could be detained, but that he should have an opportunity to challenge his prolonged detention. Before that process could occur, the government arranged for him to be sent to Saudi Arabia to live. Though a U.S. citizen, he had spent much of his life in Saudi Arabia.
In Padilla’s case, the Fourth Circuit ruled that he could be held by the military, under the Hamdi precedent. That Court said it made no difference that Padilla was captured on U.S. soil — at O’Hare Airport in Chicago — instead of in a foreign battle zone, because he still posed a threat to return to terrorist activity against the U.S.
A federal judge in South Carolina earlier had ruled that Padilla should either be released, or charged with a crime in civilian court. Rather than do either, the government appealed to the Fourth Circuit, where it prevailed, leading to Padilla’s petition to the Supreme Court, filed Oct. 25.
(Thanks to Richard Samp of Washington Legal Foundation for an early alert to the new indictment.)
