‘Enemy Combatant’ Loses Bid to Sue Ashcroft and Others
By David Stout | February 18, 2011 3:00 pm

Jose Padilla, an American citizen once suspected of wanting to explode a lethal radiological “dirty bomb” in the United States, does not have the right to sue U.S. officials for his treatment while he was held in a Charleston, S.C., brig, a federal judge has ruled.

Judge Richard Gergel of the District of South Carolina on Thursday dismissed Padilla’s suit against several figures in the executive branch, including former Attorney General John Ashcroft, former Defense Secretary Donald H. Rumsfeld and others.

Jose Padilla

In a 32-page ruling, Gergel concluded that the officials were protected by “qualified immunity” from being sued for their official actions, which were taken while the country and its leaders were still reeling from the terrorist attacks of Sept. 11, 2001.

Padilla was arrested in Chicago in 2002 as a material witness to what Ashcroft and other officials said was a “dirty bomb” plot. Thereafter, Padilla was designated an “enemy combatant” by President George W. Bush and held in the brig for more than three years, a time in which he was denied many of the rights American citizens generally have when they are accused of crimes.

“The designation of Padilla as an enemy combatant and his detention incommunicado were made in light of the most profound and sensitive issues of  national security, foreign affairs and military affairs,” Gergel wrote. “It is not for this Court, sitting comfortably in a federal courthouse nearly nine years after these events, to assess whether the policy was wise or the intelligence was accurate.”

Padilla was eventually convicted of terrorism-related charges unrelated to the supposed bomb plot and was sentenced in 2007 to 17 years 4 months in prison. His conviction is being appealed.

As Josh Gerstein notes on Politico, “Gergel’s decision is at odds with a 2009 ruling from another federal judge in a separate lawsuit Padilla brought against former Justice Department attorney John Yoo. That judge, Jeffrey White of San Francisco, ruled that Padilla’s suit against Yoo could go forward. Yoo’s appeal of that ruling is currently pending before the U.S. Court of Appeals for the Ninth Circuit. Lawyers said Gergel’s decision is certain to be appealed to the Fourth Circuit and that the dispute is likely to eventually wind up before the Supreme Court.”

The Ninth is widely regarded as the most liberal of the circuits, and the Fourth as the most conservative. So court-watchers may be tempted to speculate that the Ninth Circuit will uphold White’s decision and the Fourth Circuit will uphold Gergel’s decision. But, as Gerstein notes, judges’ decisions sometimes go against expectations: Gergel, who ruled against Padilla, was appointed by President Barack Obama. White, who ruled in favor of the prisoner, was appointed by Bush.


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