A SNICKER MOMENT

U.S. Defends Conduct in Padilla Case
Supreme Court Asked To Overrule 4th Circuit
By Jerry Markon
Washington Post Staff Writer
Thursday, December 29, 2005; A04

A federal appeals court infringed on President Bush's authority to run the war on terror when it refused to let prosecutors take custody of "enemy combatant" Jose Padilla, the Justice Department said yesterday, as it urged the U.S. Supreme Court to intervene.

The sharply worded Justice Department filing was the latest salvo in an increasingly contentious battle over Padilla, a U.S. citizen arrested in Chicago in 2002 and initially accused of plotting to detonate a radiological "dirty bomb." Padilla was held for more than three years by the military before he was indicted last month in Miami on separate criminal terrorism charges.

The U.S. Court of Appeals for the 4th Circuit refused last week to allow prosecutors to take custody of Padilla from the military and rebuked the Bush administration for its handling of the high-profile case. The Bush administration took strong issue yesterday with the Richmond-based court's decision and appealed it to the Supreme Court.

The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla's incarceration and engaged in "an unwarranted attack on the exercise of Executive discretion." Prosecutors accused the court of going so far as to "usurp" Bush's authority as the nation's commander-in-chief and his government's "prosecutorial discretion."

In its ruling last week, the 4th Circuit questioned the government's changing rationale for Padilla's detention since the September decision, because the criminal charges do not mention a dirty bomb plot or any attack inside the United States. The court said prosecutors had left the appearance that they were trying to avoid Supreme Court review of Padilla's case and suggested that Padilla might have been "held for these years, even if justifiably, by mistake."

Yesterday, prosecutors denied any attempt to avoid the Supreme Court and said they had narrowed the charges against Padilla because elaborating on the original allegations would compromise intelligence "sources or methods."

"There is nothing remotely sinister about the government's effort to pursue criminal charges that minimize evidentiary complications," the brief said, adding that "there is no basis for questioning the good faith of the government in moving forward with the indictment."