The Bush administration today avoided a showdown before the U. S. Supreme court when Jose Padilla was indicted (with four others) for conspiracy to commit terrorist activities in foreign countries.
Padilla, an American citizen born in Brooklyn has been held in military a prison for over three years. Most of that time he was denied any contact with his attorney. Padilla’s case, long delayed by jurisdictional and other disputes, has been appealed to the Supreme Court. Padilla's lawyers had asked justices for a review of his detention without charge last month. The Bush administration was facing a deadline of next Monday to file its reply.
"They're avoiding what the Supreme Court would say about American citizens. That's an issue the administration did not want to face," according to Duke University law professor Scott Sillman. "There's no way that the Supreme Court would have ducked this issue." Some court observers feel that the Supreme Court would most likely would have held that Padilla’s detention was illegal. (see law professor Stephen Vladeck’s discussion of the Supreme Court case here.)
According to then Attorney General Ashcroft, Padilla was arrested and detained because he was planning to build a "dirty bomb", a conventional explosive device that would spread radio active material. However, his indictment (read it here) does not accuse him of planning a dirty bomb but of planning to carry out terrorist activities outside the United States.
The government is, we assume, planning to try Padilla. The trial will determine his guilt. However, what about the question that was going to be brought to the court about holding citizens without charge and without access to legal counsel. The current case appears to be moot.
Perhaps the next move will be for Padillas attorneys to ask for a dismissal of the indictment based on Padillas Sixth Amendment right to a speedy trial.
See Washington Post article.