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Slate's Jurisprudence: Padilla Gets His Day in Court


President Bush says the war in Iraq is a central front in the war on terror, but this week, the Bush administration's war on terror here in the US reached a milestone. The Justice Department transferred the terrorism case against Jose Padilla from the military to the civilian justice system. Padilla, who used to be known as the alleged `dirty bomber,' was indicted in federal court after more than three years of being held as an enemy combatant. Joining us to discuss the significance of this is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for us here at DAY TO DAY.

And, Dahlia, there was no mention, I understand, in the indictment of any alleged acts against the US or any plots against American citizens and this dirty bomb accusation has disappeared. So what is he charged with?

DAHLIA LITHWICK (Legal Analyst): Not only has the dirty bomb charge disappeared, Madeleine, but also there was, you'll remember, a second plot that the Justice Department was touting, that he was going to be involved in this big plot to blow up US apartment buildings. That also was not on the table yesterday. What he was charged with was much, much narrower and it was, you know, conspiracy to, quote, "murder, maim and kidnap" individuals overseas. So, as you say, not even in America. There was another charge of, quote, "providing material support" to the enemy.

BRAND: Well, that doesn't sound particularly specific. It sounds like that could cover a broad range of activities.

LITHWICK: Well, the conspiracy charges are interesting. They were sort of tacked on to an existing conspiracy investigation of some other guys. The `providing material support' problem is even bigger in some sense, Madeleine. It's an incredibly broad set of behaviors that are swept into this allegedly criminal behavior. It could include things like giving monies to charities without knowing that go to support terrorists. It could include all sorts of things that are theoretically protected under your First Amendment speech rights, and yet this notion of providing material support to terrorists has been one of the core charges against virtually every terrorist who's been convicted in the United States.

BRAND: And the timing of this is interesting. People have said that there's no coincidence that this indictment comes just when the government has had to respond to the Supreme Court in Padilla's case challenging his detention as an enemy combatant.

LITHWICK: That's right, Madeleine, and this isn't the first time. You'll remember Padilla didn't have an attorney for a long, long time until last time he was going up before the Supreme Court and suddenly, the government said, `Oh, you know, he's allowed to have an attorney.' So there is this sort of strange tendency to wait till the minute and then give him certain rights.

BRAND: But, Dahlia, was the Bush administration concerned about its argument in the Padilla case, given the fact that the Supreme Court has already ruled in a similar case involving a US citizen, the Yaser Hamdi case?

LITHWICK: I think so, Madeleine. It's fairly clear that the Hamdi case, which was decided a year and a half ago--again, by an 8-to-1 vote in the Supreme Court--where the Supreme Court said even an enemy combatant who is picked up on the battlefield in Afghanistan, like Hamdi was--Padilla, don't forget, was picked up in a Chicago airport--but if even Hamdi has the right to question his detention, to have some due process, says the Supreme Court, how is it possible that the Bush administration is still holding on to Padilla a year and a half after that decision came down? And so I think, yes, the scuttlebutt is rather than get involved in yet another round of being slapped down by the US Supreme Court, it was better to sort of cut and run and recognize that they were not going to win again, even with a slight change in the composition of the court and that, in fact, they were going to have to give this guy some due process, so why not just transfer him into the criminal justice system and let him have his, quote, "day in court."

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate.

Thank you, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: And by the way, no need to write in and tell us we're mispronouncing Mr. Padilla's (pronounced pad-dil-lah) name--that's right, not Padilla (pronounced pa-dee-yah). That is the way he and his family prefer it to be pronounced. And if you don't believe us, we double-checked yesterday with his lawyer.

Ms. DONNA NEWMAN (Padilla's Attorney): This is Donna Newman. My client's name is Jose Padilla (pronounced pad-dil-lah), and I thank you very much.

BRAND: Case closed. Transcript provided by NPR, Copyright NPR.

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