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Why did the Bush Administration Hold Jose Padilla for 3 Years as an Enemy Combatant?

The Justice Department announced Tuesday criminal charges have been filed against Jose Padilla - the U.S. citizen who had been held for over three years in solitary confinement on a military brig in South Carolina.

Padilla was first detained in 2002 at Chicago's O'Hare Airport after he returned from a trip to Pakistan. At the time Attorney General John Ashcroft warned the government had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb." President Bush declared he was an enemy combatant who could be jailed in solitary confinement indefinitely without charges - even though he was a U.S. citizen.

The Bush administration didn't even let Padilla meet with an attorney for two years.

On Tuesday Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes.

• Alberto Gonzales, U.S. Attorney General, November 22, 2005:
  "Earlier today, a superseding indictment was unsealed in federal court in the Southern District of Florida charging Jose Padilla with providing - and conspiring to provide - material support to terrorists, and conspiring to murder individuals who are overseas." [Full transcript of statement] 

But the indictment raises questions over why the Bush administration held Padilla as an enemy combatant for over three years.

There is no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There is also no mention that Padilla ever planned to stage any attacks inside the country. And there is no direct mention of Al Qaeda. Instead the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but the indictment offers no evidence he ever engaged in terrorist activity.

This is Padilla's attorney Donna Newman.

• Donna Newman, attorney for Jose Padilla, November 22, 2005:
  "We were anxious for an indictment because we knew that we could demonstrate that the government has exaggerated Mr. Padilla's involvement in any activity, that he was innocent of the charges."

The Washington Post reports Padilla's indictment came days before the Bush administration was due to respond to his appeal to the Supreme Court over his lengthy detention. Legal experts have said the government is trying to avoid another potentially losing confrontation in the high court over its detention policies. Attorneys with the Justice Department have already filed paperwork arguing that Padilla's Supreme Court challenge is now moot.

• Andrew Patel, one of Jose Padilla's attorneys.
• Bill Goodman, Legal Director of the Center for Constitutional Rights.

AMY GOODMAN: On Tuesday, Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes.

ALBERTO GONZALES: Earlier today, a superseding indictment was unsealed in federal court in the Southern District of Florida charging Jose Padilla with providing and conspiring to provide material support to terrorists and conspiring to murder individuals who are overseas. The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in violent jihad, a shorthand term to describe a radical Islamic fundamentalist ideology, that advocates using physical force and violence to oppose governments, institutions and individuals who do not share their view of Islam.

AMY GOODMAN: That was Attorney General Alberto Gonzales. But the indictment raises questions over why the Bush administration held Padilla as an enemy combatant for over three years. There's no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There's also no mention that Padilla ever planned to stage any attacks inside the country. And there's no direct mention of al-Qaeda. Instead, the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan, but the indictment offers no evidence he ever engaged in terrorist activity. This is his Padilla’s attorney, Donna Newman.

DONNA NEWMAN: We are fighting, in our cert petition, the government's position that they have unfettered discretion and authority to arrest any American citizen and label them an enemy combatant and detain them indefinitely until, at their discretion, they decide to do something else. We were anxious for an indictment, because we knew that we could demonstrate that the government has exaggerated Mr. Padilla's involvement in any activity, that he was innocent of the charges.

AMY GOODMAN: That was Donna Newman, Jose Padilla's attorney. The Washington Post reports Padilla's indictment came days before the Bush administration was due to respond to his appeal to the Supreme Court over his lengthy detention. Legal experts have said the government is trying to avoid another potentially losing confrontation in the high court over its detention policies. Attorneys with the Justice Department have already filed paperwork arguing Padilla's Supreme Court challenge is now moot.

Today we're joined in our New York studio by one of Jose Padilla's attorneys, Andrew Patel, as well as Bill Goodman, Legal Director of the Center for Constitutional Rights. And we welcome you both to Democracy Now! Andrew Patel, let's begin with you. What happens to the Supreme Court challenge over Padilla's detention?

ANDREW PATEL: The cert process continues. The government will file their -- our cert petition has been in. Their reply brief was due next week. They will get a short extension to file a brief. We anticipate that they will raise the issue of mootness, and we will reply that it is not moot, and we will ask the court to consider this very important issue. Not only is it not moot as to Mr. Padilla, for example, suppose he was acquitted of this charge or the case was somehow dismissed, and the government decided that, well, we don't want him out and they just declare him to be an enemy combatant and send him back to the brig again. Until the Supreme Court rules that the President does not have that power, that's an authority, as Justice Jackson said in his dissent to Korematsu, that lies around like a loaded gun ready to be used or abused at any time.

AMY GOODMAN: Korematsu, being the Japanese American detained during World War II.

ANDREW PATEL: That's correct.

AMY GOODMAN: Can you outline what exactly this indictment says? It seems more to talk about the other men than it does your client. And his name is pronounced Jose Padilla?

ANDREW PATEL: That's what his mother tells me.

AMY GOODMAN: How much have you seen -- have you seen Jose Padilla?

ANDREW PATEL: Since we first got access to him, we have been able to see him pretty much as we needed to. Of course, we are in New York; he is in South Carolina, so there have been difficulties, but I have been able to see him in five or six weeks --

AMY GOODMAN: And when did you get access to him?

ANDREW PATEL: The day the government's reply brief was due in the first cert round.

AMY GOODMAN: How long was that after his detention?

ANDREW PATEL: About two years.

AMY GOODMAN: He didn't have attorney access for two years?

ANDREW PATEL: That's correct. When he was first brought to New York as a material witness, classic arrest based on a warrant issued by a judge, Donna Newman was assigned to represent him. When the President signed the order on June 9, sending him to the military custody, we were denied access. In fact, we couldn't even write to him. In the cert process, where the government asked the court to review the Second Circuit decision saying the President had no such authority, we asked the court to take the due process issue, including whether we could see Mr. Padilla or, more importantly, whether Mr. Padilla could see us.

Their reply was due on a given date at 3:00 in the afternoon, according to the court's schedule. At 1:00, I received a call from the military saying that we would be getting access. At 2:00, the government had a press conference saying they were giving us access, and at 3:00, they filed a brief saying to the court that the court didn't need to consider the due process issue, it was moot, and they actually cited to the web link to their press conference of an hour before.