WASHINGTON, 30 December 2005 — Lawyers for an American ‘war on terror’ detainee said Wednesday they had petitioned the Supreme Court to examine the US president’s powers, citing “the danger of an unchecked Executive Branch”.
In a filing on Tuesday, lawyers for terror suspect Jose Padilla cited evasive government moves to avoid a high court examination of his case as reason for requesting a “certiorari” review of a lower court decision challenging the president’s wartime powers.
“The government’s actions highlight the need for this court to grant certiorari to preserve the vital checks and balances” implicit in the US Constitution, the petition said.
Referring to a series of “strategic maneuvers” to keep Padilla’s case from being heard in court, the petition said the government’s actions “highlight the danger of an unchecked Executive Branch.”
Padilla’s detention “raises questions of profound constitutional importance about the government’s military power over citizens in the homeland,” the petition said.
The petition comes as there are growing questions about President George W. Bush’s use of executive war powers to authorize certain treatments of detainees — allegedly including torture — and surveillance of US citizens without court orders.
Padilla, a US citizen who converted to Islam, was arrested in May 2002 after returning from Pakistan and has been detained without trial ever since in a military prison as an “enemy combatant”.
In September his lawyers petitioned the Supreme Court to review the government’s powers to detain him without charge or trial.
In response, the government moved to transfer Padilla to civilian custody for trial.
Arguing the government’s case, Attorney General Alberto Gonzales declared that there was no longer any reason for a Supreme Court hearing, because Padilla himself asked to be freed from military custody to be charged and tried.
Nevertheless, on Dec. 21 a Virginia appeals court rejected Padilla’s transfer, questioning the government’s tactics as appearing to be an attempt to avoid Supreme Court scrutiny.
That ruling led to Tuesday’s petition for a broader hearing on the president’s wartime powers to detain US citizens. Padilla’s lawyers point out in their petition that the government has changed the basis for holding him several times.
Originally, Padilla was arrested for planning to plant a nuclear “dirty bomb” inside the United States, but on November 17 the government advanced charges only that Padilla had plotted to wage “jihad” on the country.
On Wednesday government lawyers challenged the newest petition as a “mischaracterization of events and an unwarranted attack on the exercise of Executive discretion.”
It attacked the Virginia court’s denial of permission to transfer Padilla as exercising “an unidentified and unprecedented judicial authority to disregard a presidential directive to transfer an enemy combatant out of military custody.”
