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Appeals court refuses to transfer terror suspect

Prosecutors sought to move Padilla to civilian court

WASHINGTON -- A federal appeals court yesterday refused to authorize the transfer of terrorism suspect Jose Padilla to face new criminal charges, issuing a strongly worded opinion rebuking the Bush administration and its handling of the high-profile case.

The same court that had granted the administration wide latitude in holding Padilla without charges or a court appearance now is suggesting that the detention may have been a mistake. As a result, the US Court of Appeals for the Fourth Circuit, based in Richmond, said prosecutors could not take custody of Padilla from the military and bring him to Miami, where he now faces terrorism charges.

In issuing its denial, the court cited the government's changing rationale for Padilla's detention, questioning why it used one set of arguments before federal judges deciding whether it was legal for the military to hold Padilla, and another set of arguments before the Miami grand jury. Padilla, a US citizen who was arrested in Chicago in 2002, initially was accused of plotting to detonate a radiological ''dirty bomb," declared an enemy combatant, and held for more than three years in Defense Department custody. But in the criminal charges brought last month, the government does not mention the alleged bombing plot.

The government's actions have left ''the impression that Padilla may have been held for these years, even if justifiably, by mistake," the court wrote. That impression, the judges said, may hurt the government's credibility before the courts.

Padilla, a former gang member, has been at the center of a heated battle over governmental powers since the Sept. 11, 2001, terror attacks because he was imprisoned so long without the opportunity to challenge his detention.

Justice Department officials now must decide whether to defy the court and bring Padilla before a federal judge in Miami. Tasia Scolinos, a department spokeswoman, said the government is ''disappointed that the court has denied the unopposed motion to transfer Jose Padilla to the criminal justice system to face the terrorism charges currently pending against him."

In requesting the transfer to Justice Department custody, the government suggested that the Fourth Circuit Court vacate its order allowing Padilla to be held as an enemy combatant. But the court yesterday refused to lift the earlier order, and suggested that the Justice Department request was made to avoid further judicial scrutiny.

The judges said prosecutors had left ''an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." They said they welcomed Supreme Court intervention because of the case's implications.

Some lawyers said Supreme Court involvement might be inevitable because it would be difficult for the administration to defy an appellate court and transfer Padilla at a time when it faces criticism over a secret spying program and other parts of its counterterrorism efforts.

''They've been kind of beat up lately about the way they've conducted the war on terrorism," said Eric Holder, deputy attorney general in the Clinton administration. ''It's a difficult thing for them now to take another hit from the Fourth Circuit, and then do something contrary to what that court says."

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