For the time being, however, Padilla is both an "enemy combatant" and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: "A senior attorney at the Solicitor General's Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him."
On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would "supersede" his earlier order designating Padilla an "enemy combatant" and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla's custodian. In fact, another of Padilla's lawyers, Michael P. O'Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order "does not remove the designation of 'enemy combatant' that the President placed upon Mr. Padilla..." And O'Connell said that "the government continues to assert the authority to return Mr. Padilla to military custody."
O'Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: "Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed" until the Supreme Court acts on Padilla's appeal to the Justices.
The legal uncertainty, of course, is pervasive, and remains quite confusing.
The scary recital matched the picture the government has been publicly displaying of Padilla for the past couple of years. In a celebrated press conference on June 1, 2004, then-Deputy Attorney General James Comey revealed the apartment blowsup plot in telling the public "the sobering story of Jose Padilla." That account, he said, "will allow the American people to understand the threat he posed and also understand that the president's decision [to name him a combatant and detain him]." Besides the plans to blow up apartment buildings, Comey recalled the by-then familiar government asertion that Padilla had planned to release a radioactive bomb in the U.S.
The Comey revelations, of course, made their way into the government's arguments that led the Fourth Circuit to uphold Padilla's designation.
But that picture of Padilla's actions is markedly different from the picture that emerges in the new criminal indictment. The Justice Department laid that indictment before the Fourth Circuit as part of its filings seeking approval of his transfer from military to civilian custody for trial on the indictment. The Circuit Court no doubt saw the differences between the two. And that, apparently, is what led the Fourth Circuit to raise the possibility that it would vacate its ruling in favor of the presidential authority used against Padilla -- a precedent the government very much wants left on the books.
According to the indictment, Padilla played only a decidedly minor role in the activity of a "North American support cell" for terrorism. The indictment charges that he was recruited by that cell to participate in violent acts overseas, "and traveled overseas for that purpose." There are 11 counts in the indictment, which names Padilla along with four others. But Padilla is charged in only three of the counts -- conspiracy to commit murder and other violence "in a foreign country," conspiracy to "provide material support for terrorists," and providing "material support for terrorists." There is no mention of the facts about the apartment blowup or the radioactive bomb (apparently because the government got some of that evidence from interrogating Padilla, and some from Al Qaeda operatives it does not want summoned as witnesses.)
The Fourth Circuit, in its order Nov. 30 calling for new briefs on whether to vacate its Sept. 9 ruling, cited the "different facts that were alleged...and held by this court to justify" his detention, "and the alleged facts on which Padilla has now been indicted."
The final of those newly summoned briefs is due Dec. 16 -- the next key date, too, in the Supreme Court proceedings.
Plainly, the process has much further to go, with the outcome shrouded in more doubt than at any time since Padilla was named an "enemy combatant" on June 9, 2002.
This was always freaky and scary, but this is downright wierd. Charging him here apparently only to cause confusion and delay Court proceedings, this is outrageous. Give the man his due process. It's obvious Bush really was sincere when he referred to the 2004 election as "the accountability moment."