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Tuesday, March 1, 2005 - Page updated at 12:00 AM

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Judge orders U.S. to charge, or free, suspected terrorist

The Washington Post

A federal judge in South Carolina ruled yesterday that the Bush administration lacks statutory and constitutional authority to indefinitely imprison without criminal charges a U.S. citizen who was designated an "enemy combatant."

Rejecting a series of arguments put forward by the government, District Court Judge Henry Floyd said that the indefinite detention of Jose Padilla — who the administration has said is a terrorist supporter of the al-Qaida terrorist network — is illegal and that Padilla must be released from a Navy brig in Charleston, S.C., within 45 days or be charged with a crime.

In a strongly worded ruling, Floyd said, "To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and our individual liberties."

Floyd said he was not persuaded by arguments put forward by the administration to justify its assertion that Americans designated "enemy combatants" by the president can be detained without trial.

Using a phrase often used by conservatives to denigrate liberal judges, Floyd — who was appointed by President Bush in 2003 — accused the administration of engaging in "judicial activism" by asserting it has blanket authority under the Constitution to detain Americans on U.S. soil who are suspected of taking or planning actions against the country.

Floyd said that the government presented no law supporting this contention and that just because the administration says Padilla's detention was consistent with U.S. laws and the president's war powers, that did not make it so.

"Moreover, such a statement is deeply troubling," Floyd's ruling said. "If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on presidential authority to protect the citizenry's individual liberties."

This is the second time the government's handling of Padilla has been repudiated in federal court. In December 2003, a federal appeals court in New York also held that Bush lacked authority to hold Padilla in a military brig and ordered him released. But the Justice Department appealed the decision, and the Supreme Court ruled in June 2004 that Padilla's petition for release should have been processed in federal court in South Carolina, not New York.

The government has vowed to appeal. One of Padilla's attorneys, Donna Newman, said the "court ruled that the president does not have the power to seize an American citizen on American soil and hold him indefinitely without a charge. That shouldn't be big news, but it is. ... It confirms our belief that the Constitution is alive and well and kicking. The system works."

Padilla, 34, was monitored by the FBI on a flight from Pakistan to Chicago's O'Hare airport in May 2002 and initially arrested on a warrant describing him as a material witness to an ongoing terrorism investigation. After being questioned by investigators in New York and demanding a lawyer, he was officially designated by Bush as an enemy combatant and taken to the brig, where he has been for the past 32 months.

U.S. officials contended that Padilla was scouting sites to detonate a radioactive "dirty" bomb. They also said he had met with senior al-Qaida officials and would pose a grave threat to the country if released.

Copyright © 2005 The Seattle Times Company

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