Jose Padilla Indicted, Transferred to DOJ Custody
Jose Padilla has been indicted and transferred to Justice Department custody, ending a three year detention by the Defense Department as an “enemy combatant.”
Jose Padilla, a U.S. citizen held for three years as an enemy combatant suspected of plotting a “dirty bomb” attack in this country, has been indicted on charges that he conspired to “murder, kidnap and maim” people overseas. A federal grand jury in Miami returned the indictment against Padilla and four others. While the charges allege Padilla was part of a U.S.-based terrorism conspiracy, they do not include the government’s earlier allegations that he planned to carry out attacks in America. “The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad,” Attorney General Alberto Gonzales said at a news conference in Washington. Gonzales declined to comment on why none of the allegations involving attacks in America were included in the indictment.
Padilla, a Brooklyn-born Muslim convert, has been held as an “enemy combatant” in Defense Department custody for more than three years. The Bush administration had resisted calls to charge and try him in civilian courts. With the indictment, Padilla will be transferred from military custody to the Justice Department. Gonzales said the case would go to trial in September of 2006. Padilla faces life in prison if convicted on the charges.
The indictment avoids a Supreme Court showdown over how long the government could hold a U.S. citizen without charges. The high court had been asked to decide when and for how long the government can jail Americans in military prisons. “They’re avoiding what the Supreme Court would say about American citizens. That’s an issue the administration did not want to face,” said Scott Silliman, a Duke University law professor who specializes in national security. “There’s no way that the Supreme Court would have ducked this issue.”
Agreed. This should have been resolved years ago.
Update: Orin Kerr weighs in on the mootness issue, which is under discussion in the comments here.
The timing presumably is no coincidence; the government’s response to Padilla’s petition for certiorari is due in six days, and the filing of the indictment gives DOJ what I would think is a strong argument that the issues raised are moot and the petition should be denied. Of course, you never know what will happen; the Bush Administration restructured the Guantanamo military tribunals in September in what appeared to be a partial response to the pending Hamdan petition, and the Court granted the petition anyway. For more on the impact of today’s indictment, see Lyle Denniston’s take over at SCOTUSblog.
Dennison offers this:
Padilla’s attorneys, however, are expected to contest [the mootness] 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.”
It’ll be interesting to see how the argument unfolds. Politically, this is certainly a live issue; it’s anyone’s guess how the Court will view it legally.