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WASHINGTON — Jose Padilla, the U.S. citizen and accused “dirty bomber” who has been detained as an enemy combatant for the past three years, is making another bid for freedom. Padilla was arrested in May 2002 on a material witness warrant when he arrived in the United States from Pakistan via Zurich, Switzerland. At the time, the government alleged that Padilla was involved in a plot to detonate a dirty bomb on U.S. soil. A month later, President George W. Bush declared Padilla an enemy combatant and he was moved to a military brig in South Carolina, where he remains today. The president cited Padilla’s close association with al-Qaida as reason for the designation, saying Padilla “possesses intelligence” that “would aid U.S. efforts to prevent attacks by al-Qaida on the United States” and that he “engaged in hostile and warlike acts” in preparation for attacks against America. Padilla, Bush said, “represents a continuing, present, and grave danger to the national security of the United States.” The alleged al-Qaida loyalist’s case already has wound its way once through the federal courts, landing before the Supreme Court in 2004. The justices voted 5-4 not to decide the merits of Padilla’s case and instead ruled that the case had been filed in the wrong court — it had been filed in New York — and against the wrong person. Padilla’s lawyers immediately refiled his case in the U.S. District Court for the District of South Carolina and named Cmdr. C.T. Hanft, the commander of the Navy brig where Padilla is being held, as the defendant. In February 2005, the U.S. District Court in South Carolina agreed with an earlier ruling by the Second Circuit U.S. Court of Appeals in New York and found that the government had no grounds to hold Padilla indefinitely, ruling that he must either be charged with a crime or released. The government appealed to the Fourth Circuit, the court that reviews decisions from the South Carolina federal trial court. The Fourth Circuit agreed to an expedited hearing, but Padilla’s lawyers petitioned the Supreme Court to take up the case without waiting for the Fourth Circuit to act. The case, now called Padilla v. Hanft, is set for review at the Supreme Court’s conference Thursday and asks the justices to consider whether the president has the power to seize U.S. citizens on American soil and subject them to indefinite military detention without filing formal charges. “Here we have an American citizen who has been detained without trial for three years,” says Jenny Martinez, the counsel of record for Padilla and an assistant professor at Stanford Law School. “At some level there is something fundamentally unfair with the government saying, ‘We can keep you locked up forever and we can keep changing [the charges].’” Martinez, a former clerk to Justice Stephen Breyer, says she is hopeful the justices will again grant certiorari, since they are familiar with the briefs and the merits of the case were argued last year. In its briefs, the government argues that Padilla’s continued detention is lawful under the resolution passed by Congress shortly after the Sept. 11, 2001, terrorist attacks that allows the president to use “all necessary and appropriate force” against those “he determines planned, authorized, committed, or aided the terrorist attacks.” The government also argues that Supreme Court involvement at this point would be premature, since the government’s appeal to the Fourth Circuit is still pending. “It looks more like an effort to avoid the Fourth Circuit,” says Richard Samp, chief counsel for the Washington Legal Foundation, which filed an amicus curiae brief supporting the government in the Fourth Circuit, but is not involved in the Supreme Court appeal. Even if the high court expedited the case, the justices would not hear arguments until the fall, Samp says; litigating the case first at the Fourth Circuit would only add a few months. But in their brief, Padilla’s lawyers — Michael O’Connell of Stirling & O’Connell in Charleston, S.C.; New York solos Andrew Patel and Donna Newman; Jonathan Freiman of Wiggin and Dana in New Haven, Conn.; and Martinez — argue that three years of confinement and prolonged uncertainty is long enough.”[A]ny benefit that an opinion from the Fourth Circuit might provide is more than outweighed by the costs of any further delay in the Court’s final adjudication of this issue,” they write. OTHER CASES UP FOR REVIEW June 16 Conference Honeywell International Inc. v. Hamilton Sundstrand Corp., 04-293. Presumption of prosecution history estoppel. Rodriguez v. United States, 04-1148. Should a federal sentence prior to United States v. Booker that exceeded maximum sentence be corrected for plain error? Hudson v. Michigan, 04-1360. Does inevitable discovery doctrine create an exception to exclusionary rule after a knock-and-announce violation? Sprint Communications Co. v. Smith, 04-1219. Settlement of class action claims when class representative cannot satisfy adequacy requirement. City of Cleveland v. Beck, 04-1416. Can a compensatory time agreement between a public employer and its safety forces allowing paid leave be denied when staffing is at minimum levels? This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Bethany Broida is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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