U.S. citizen indicted in overseas plot

11/23/2005

WASHINGTON Jose Padilla, the Brooklyn-born convert to Islam who has been detained without trial since 2002 for allegedly plotting to explode a radioactive dirty bomb in the United States, has been indicted by a federal grand jury on different terrorism charges, Attorney General Alberto Gonzales said yesterday.

Padilla and four others now are accused of belonging to a North American terror cell that sent money and recruits overseas to murder, maim, and kidnap and conspiring to kill Americans.

In announcing the superseding indictment, the Bush Administration apparently has avoided another Supreme Court test of its authority to hold U.S. citizens as enemy combatants.

Padilla is one of two U.S. citizens who were detained as enemy combatants. The other, Yaser Hamdi, who was captured in Afghanistan, was expelled to Saudi Arabia last year after the Supreme Court ruled 8-1 that he was entitled to challenge his detention.

Padilla s lawyers had been encouraged by the leading opinion in the Hamdi case, in which Justice Sandra Day O Connor wrote: We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.

Questioned yesterday by reporters, Mr. Gonzales declined to say why the indictment did not contain the allegation, first made by former Attorney General John Ashcroft after Padilla s arrest on returning to Chicago from Pakistan, that Padilla was part of an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.

The Justice Department unsealed the indictment by a grand jury in Miami three days before it was required to file a reply in the Supreme Court to a petition by Padilla appealing a ruling against him by the 4th U.S. Circuit Court of Appeals in Richmond, Va. The appeals court concluded that Padilla s indefinite incarceration was legal under a resolution passed by Congress after the Sept. 11, 2001, attacks authorizing President Bush to use all necessary and appropriate force against terrorists.

It s pretty clear that the triggering factor for the indictment was the deadline to reply to the Supreme Court by Monday, said Harry Litman, a former Justice Department official who teaches at Rutgers University law school in New Jersey.

The government likely decided that it would rather fight this issue, if at all, on another day, with another defendant, and even with a different justice in Justice O Connor s seat since she wrote the opinion in the Hamdi case saying that a state of war is not a blank check for the President, Mr. Litman said.

Padilla, like Hamdi, had appealed to the Supreme Court. But on June 28, 2004, the same day it ruled that Hamdi was entitled to pursue his claim in lower courts, the justices ruled 5-4 that Padilla had filed his petition in the wrong federal district court.

Padilla refiled the petition and a federal judge in South Carolina ruled that President Bush exceeded his authority in detaining Padilla. That ruling was reversed by the 4th Circuit, which ruled the congressional authorization of force against terrorists gave Mr. Bush the authority to detain militarily a citizen of this country who is closely associated with al-Qaeda, an entity with which the United States is at war.

Padilla has asked the Supreme Court to review that ruling.

But Padilla s appeal probably became moot yesterday when Mr. Bush instructed Defense Secretary Donald Rumsfeld to transfer Padilla from a U.S. Navy brig near Charleston, S.C., to a federal detention facility in Miami.

His lawyers could still press the Supreme Court to hear his appeal of his original detention.

Jenny Martinez, a Stanford University law professor who represents Padilla at the Supreme Court, told the Associated Press that there s no guarantee the government won t do this again to Padilla or others.

The Supreme Court needs to review this case on the merits so the lower-court decision is not left lying like a loaded gun for the government to use whenever it wants.

In addition to Padilla, the indictment unsealed yesterday names Kassem Daher, a Canadian resident believed to be overseas, and three other defendants previously charged with terrorism-related crimes: Adham Hassoun, a Lebanese-born Palestinian; Mohamed Youssef, an Egyptian, and Kifah Jayyousi, a Jordanian national who also holds U.S. citizenship.

The indictment said the defendants belonged to a North American support cell designed to send money, physical assets, and ... recruits to overseas conflicts. Hassoun and Jayyousi are in federal custody in Miami, while Youssef is serving a prison sentence in Egypt, Justice Department officials said. Daher is believed to be in Lebanon.

Padilla could face life in prison if convicted of being part of a conspiracy to murder, maim, and kidnap overseas. The other two charges carry maximum prison terms of 15 years each.

Contact Michael McGough at: mmcgough@nationalpress.com or 202-662-7025.