NEW YORK (CNN) — The Justice Department told a federal appeals court Friday that terror suspect Jose Padilla’s complaints about being held indefinitely as a “enemy combatant” are irrelevant now that criminal charges have been filed in Florida.
And, prosecutors said, it doesn’t matter if the charges against Padilla don’t include a previously alleged “dirty bomb” plot.
Meanwhile, Senate Judiciary Committee Chairman Arlen Specter has announced that he is launching a formal probe of the Justice Department’s handling of the Padilla case and may hold a public hearing.
Specter said Thursday: “I think there’s a real question raised when you hold a citizen for three and a half years on a charge that he’s going to explode a dirty bomb and then, when the Supreme Court is considering taking jurisdiction of the case, to withdraw. That troubles me.”
The 4th U.S. Circuit Court of Appeals has held up Padilla’s transfer from a military brig in South Carolina.
The court asked the government to explain why a Miami grand jury’s indictment made no mention of a “dirty bomb” plot and other allegations cited by the Bush administration to detain Padilla in a military brig for the past three and a half years.
Prosecutors explained: “The executive has determined that the demands of national security can now be adequately satisfied by charging petitioner criminally. The fact that those charges involve different facts from those relied upon by the president in ordering petitioner’s military detention is not consequential.”
Although the indictment’s allegations are different, they are “gravely serious offenses” that carry a potential penalty of life imprisonment, prosecutors said.
Padilla’s attorneys had pleaded with the government to either charge Padilla or release him, and a federal judge in South Carolina agreed. The appeals court reversed that decision.
In September, a three-judge appeals court panel ruled that the detention was lawful, citing the president’s constitutional powers as commander in chief and the congressional resolution authorizing the president to use military force against the perpetrators of the September 11 attacks.
Padilla was indicted as the issue appeared headed to the Supreme Court.
The indictment added Padilla as a defendant in a case accusing him and others of forming a “North American support cell” of a global “violent jihad” movement.
It charges Padilla with conspiracy to murder, kidnap and maim people in a foreign country, conspiracy to provide material support to terrorists and providing material support to terrorists.
According to the indictment, Padilla went to Afghanistan in 1999 and 2000 and underwent weapons and explosives training by al Qaeda, the Islamic terror group led by Saudi exile Osama bin Laden and responsible for the September 11 attacks.
But the indictment makes no mention of a plot to detonate a radioactive “dirty bomb” or blow up apartment buildings with natural gas — allegations made previously in public statements and court arguments by Justice Department officials.
Padilla, 35, is a U.S. citizen who converted to Islam after serving two terms in U.S. prison. FBI agents arrested him at Chicago’s airport in May 2002. A month later, President Bush declared Padilla an “enemy combatant” and he was moved to military custody.
Prosecutors argued in their brief that Padilla’s petition challenging his detention is irrelevant because it was “exclusively addressed to his detention by the military ‘without criminal charges.’
The courts, prosecutors said, “lack jurisdiction to consider cases that no longer present live controversies.”
Padilla’s attorneys believe the underlying questions of “enemy combatant” policy ought to be heard by the Supreme Court. Should Padilla be acquitted in Florida, for example, defense attorneys worry the government could again hold him an “enemy combatant.”
Prosecutors called that idea “entirely speculative.”
The defense brief is due December 16.