Verdict may challenge Bush's case for tribunals

The Baltimore Sun

WASHINGTON -- In winning the conviction of al-Qaida foot soldier Jose Padilla, the Bush administration might have paradoxically undercut a key tenet of the president's anti-terrorism strategy - that terrorists should be handled outside the regular court system.

The administration's ability to successfully prosecute an alleged terrorist in federal court will provide ammunition to those challenging the military tribunal system established by the administration, legal analysts said.

"What this demonstrates is that the administration's claim that the criminal justice system can't handle terrorists as criminals is a hoax," said Bruce Fein, a former Justice Department official in the Reagan administration who has criticized President Bush's terrorism policies.

But administration officials said that every case is different and that the federal courts eventually proved to be the best option for Padilla, who was held as an enemy combatant for more than three years before being charged in federal court. That route would not necessarily be appropriate for other cases, they said.

The only remaining enemy combatant known to be held in the United States, Ali Saleh Kahlah al-Marri, is challenging his detention in a case before the 4th U.S. Circuit Court of Appeals, where the government is arguing he should be tried before a military tribunal.

Amid growing calls to close the U.S. prison at Guantanamo Bay, Cuba, detainees there have also launched several challenges, including a case arguing that they should be tried in federal court and not the tribunals. The Supreme Court plans to hear that case next term.

Since the Sept. 11 attacks, the Bush administration has argued that terrorism suspects should be treated as war combatants and that the U.S. government can hold them indefinitely without giving them access to a lawyer.

Opponents say that approach deprives the suspects of basic legal rights of due process and access to counsel.

Yesterday, they leapt on the guilty verdict as proof that terrorism suspects can be tried successfully in the federal courts and that the special legal systems Bush has created for them are unnecessary.

"This vindicates those who argue for federal court trials," said Carl Tobias, a law professor at the University of Richmond who tracks terrorism cases.

Winning the Padilla verdict, Fein said, might erode the government's case against al-Marri, who is being held at a navy brig in South Carolina.

Al-Marri was arrested in December 2001 while studying at a university in Peoria, Ill. He was initially held as a material witness in a terrorism investigation and later was charged with credit card fraud and lying to the FBI. But shortly before that case was to go to trial in 2003, Bush declared him an enemy combatant because he was believed to be a sleeper agent for al-Qaida.

In June, a 4th Circuit panel ruled that al-Marri, a Qatari national, should be either charged in the federal courts, held as a material witness in a grand jury investigation or released. The administration, which has maintained that al-Marri poses a grave security threat, asked the full 4th Circuit to hear the case, which many analysts expect will eventually reach the Supreme Court.

Fein said al-Marri could just as easily be prosecuted in federal court.

"What's this argument for holding him as an enemy combatant?" Fein said. The "flaw all along" with Bush's enemy combatant designations, he added, is that the president has not proved why it is necessary to hold alleged terrorists without charges.

Fein said the Padilla prosecution further illustrates the ability of the federal courts to convict someone on conspiracy charges before they ever commit a crime.

The outcome of Padilla's case will have a similar impact on the other cases challenging the administration's beleaguered military tribunals, established primarily to try detainees in Guantanamo Bay, legal analysts said.

"It helps the Guantanamo debate by way of showing that we can go to federal court with these cases, except maybe the most extreme ones," Tobias said, adding that he could not think of a case pending at Guantanamo that would qualify as too extreme to try in federal court.

At a briefing yesterday, acting Deputy Attorney General Craig S. Morford said that prosecuting terrorism suspects in the federal courts works only in certain cases.

"You have to look on a case-by-case basis, and you have to look at the unique circumstances of each case to figure out whether it will work," he said. "These particular charges [against Padilla] did work in a regular trial."

In cases that involve classified information, the federal courts are not appropriate, he said.

But the verdict might show that it is appropriate to try American citizens in federal courts rather than holding them indefinitely as enemy combatants or putting them before military tribunals, said David B. Rivkin, a former Justice Department official in the Reagan and elder Bush administrations and a frequent ally of the administration.

"It suggests that if you have an American defendant with conduct that took place at least partially on American soil, of course, it would work," Rivkin said. "But this is a very tiny percentage of the cases."

He added that he did not believe the Padilla verdict would undermine the administration's efforts to designate enemy combatants and try them in military tribunals.

One of the most controversial elements of Padilla's case was Bush's assertion of authority to declare a U.S. citizen arrested on American soil an enemy combatant and hold him indefinitely without access to a lawyer.

"The most troubling aspect of this case is we may never have a final ruling on his denial of his rights as a citizen," said Jonathan Turley, a George Washington University law professor who is representing two terrorism suspects.

Padilla's challenge of his designation as an enemy combatant was about to go before the Supreme Court when the Justice Department announced in November 2005 that it had indicted him on terrorism conspiracy charges, and he was then transferred to a federal detention center in Miami.

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