Terror Case Challenges White House Strategy ; an Appeals Court Refused the Government's Request to Have Jose Padilla Transferred to Florida for a Criminal Trial

Article excerpt

Suddenly, terror suspect Jose Padilla seems a lot more dangerous to the Bush administration.

It has nothing to do with his suspected involvement in Al Qaeda bomb plots, analysts say. Rather, the administration worries that the US Supreme Court might agree to hear Mr. Padilla's case and decide one of the most pressing constitutional issues in the war on terrorism. And by all appearances, government lawyers think they might lose.

The issue: Does President Bush have the power as commander in chief to order the open-ended military detention of US citizens that he deems enemy combatants?

It is not a minor matter. The claim of broad presidential power is a cornerstone of the administration's effort to restore what it views as the proper level of executive authority after decades of erosion following the Watergate scandal. Such robust, independent presidential power is said to be critical to safeguarding the country from a repeat of the 9/11 terror attacks.

But the White House faces a significant hurdle. It is not at all clear that a majority of Supreme Court justices agree with such an expansive view of executive power.

The high court addressed the enemy- combatant issue in June 2004 in a case involving Yaser Hamdi.

A mere plurality ruled that President Bush did have the authority to detain a US citizen based on a congressional authorization passed shortly after the 9/11 attacks.

But only one justice, Clarence Thomas, embraced a broad conception of executive power. The justices had also agreed to hear Padilla's case at that time, but they ended up dismissing it on jurisdictional grounds without reaching the broader issue.

Now Padilla's case is back before the court and his lawyers are urging the justices to hear it.

In contrast, government lawyers are arguing in their brief to the high court that Padilla's recent indictment in Miami on terror- conspiracy charges renders his Supreme Court appeal moot.

To shore up that argument, they took the highly unusual step of inviting the Fourth US Circuit Court of Appeals in Richmond to void a September ruling upholding Padilla's military detention as an enemy combatant. …