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With the stroke of a pen, President George Bush transformed alleged terrorist Jose Padilla from an enemy combatant with few legal rights to a criminal defendant protected by the Bill of Rights. The flip-flop that suddenly granted Padilla a host of rights that he had been denied for more than three years comes after the Bush administration fought bitterly to detain Padilla — a U.S. citizen — and deny him access to federal courts, his attorneys and the media. On Tuesday, Padilla became a defendant in a federal criminal case in Miami, accused of conspiring to commit murder, kidnapping and other acts of terrorism abroad. Legal critics contend the change is an indication the Bush administration knew it abused its discretion and retreated in an effort to preserve its ability to designate future enemy combatants, as Padilla’s case was poised for review by the U.S. Supreme Court. “Today’s move is an attempt to take this action away from the Supreme Court so that they can continue to exercise these powers, maybe not against Padilla but against other Americans in the next few years,” said Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice. Padilla’s attorneys echoed Lynch’s take. “This is a vindication of the entire constitutional process, finally giving him his day in court,” said Andrew Patel, a New York attorney who represents Padilla. “Most people don’t have to wait 3 1/2 years in jail in solitary confinement to get their right to a trial.” Padilla had been denied the rights afforded criminal defendants, including the right to a speedy trial. The government had previously contended it could detain him indefinitely, as it has with hundreds of Middle Eastern men and boys detained at Camp X-ray in Guantanamo Bay, Cuba. Padilla, a former Broward County resident, had been held in a U.S. Navy brig in South Carolina without charge since his arrest in 2002 for allegedly plotting to detonate a radioactive bomb in the U.S. But the indictment unsealed Tuesday does not refer to a plan to detonate any radioactive device. He was instead charged with conspiracy to murder, maim or kidnap U.S. nationals overseas. At a news conference in Washington, U.S. Attorney General Alberto Gonzales refused to discuss Padilla’s previous detention. “The president was authorized to detain Mr. Padilla as an enemy combatant. I will leave it at that,” Gonzales told reporters. Interim U.S. Attorney Alex Acosta of Miami stood at Gonzales’ side as he announced the indictment and transfer of Padilla to the Federal Detention Facility in downtown Miami. A notice of release from the military said Padilla is now in the custody of warden Loren Grayer. The case has been assigned to U.S. District Judge Marcia Cooke. Acosta’s office declined to comment on the sudden change of course in the Padilla case. Padilla and four others were charged with various terrorist-related activities in the 11-count indictment. On Sunday, the president issued the order transferring Padilla out of military custody and into the hands of the Justice Department. “I hereby determine that it is in the interest of the United States that Jose Padilla be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him” the presidential order declared. “Legally it’s unprecedented; it’s never happened,” terrorism expert William Banks said of Padilla’s change in status. Banks is the director of the Institute for National Security and Terrorism at Syracuse University. Experts say the government may have moved to indict Padilla and change his status to avoid losing before the U.S. Supreme Court. “[The government] saw this case moving to the Supreme Court and, in my view, they came to the conclusion that the Supreme Court was going to reject this theory and say that these powers the president was asserting are illegal and violate the bill of rights,” said Lynch of the Cato Institute. Banks voiced a similar characterization of the president’s order. “I think it was the government not wanting to have to endure a Supreme Court battle over what due process rights [Padilla] would have been entitled to or whether they had the authority to detain him in a military setting at all,” Banks said. “They were looking at a loss in the Supreme Court, so they cut losses and now are looking to obtain a criminal conviction.” Experts also wondered why the government waited so long to indict Padilla if it was in a position to make a case against him. “I am cynical, frankly, as to whether this government has all of a sudden found religion or whether it is an accommodation to political reality,” said Lawrence Goldman, past president of the National Association of Criminal Defense Lawyers. He criticized the Bush administration for holding Padilla on “hearsay, secret, unprovable evidence, with out charges, without access to lawyers, [and] without access to courts. He may be a very unpopular person — certainly that’s his image — but it shouldn’t happen to any of us.” What remains to be seen is if Bush’s move will prevent the case from being reviewed by the Supreme Court. “It makes review a little less likely,” Lynch said, “but I think that the ball is still with the Supreme Court with this case.” The Supreme Court could drop the case now that Padilla’s status has been changed, effectively rendering the issues in the case moot. But Lynch said it’s possible the court will rule in the case. “They may not like this move that [the government] made today,” Lynch said. “This might be perceived by the court as a high-handed tactic by the Department of Justice to forestall judicial review.” Padilla filed a writ of certiorari seeking his release from the military prison to the U.S. Supreme Court in October. The court took up the case and reply briefs were due from the government next week. The indictment adds Padilla and Kassem Daher, a Canadian citizen believed to be overseas, to a list of three other men already accused of assisting overseas terrorist groups and plotting to “murder, maim, and kidnap” people overseas. The indictment alleges Padilla was recruited by Islamic fundamentalist cells operating in North America. The co-conspirators named in the indictment include a Sunrise computer programmer, originally from Palestine, named Adham Amin Hassoun. Padilla had already been an unindicted co-conspirator in Hassoun’s case. Hassoun is accused of providing materials, money and manpower to overseas terrorist cells. Hassoun, who attended the same Fort Lauderdale mosque as Padilla, has been in jail awaiting trial since June 2002 and previous indictments against him have been amended several times, beginning with a simple gun charge. Hassoun had previously been ordered deported in a secret proceeding before a federal judge in Miami, the Daily Business Review first reported in 2003. The judge reportedly made his decision based on a lengthy FBI report about Hassoun’s activities, which was also sealed at the time. Much of the evidence in the case remained sealed when Hassoun finally made his first court appearance in 2004. The new indictment claims Padilla went overseas to train for future terrorist operations with other Islamic radicals. Padilla and his co-defendants could be sentenced to life if convicted. Mark Hamblett of the New York Law Journal, an affiliate of the Daily Business Review , contributed to this report.

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