Longtime US detainee indicted

WASHINGTON -- Jose Padilla, the American citizen held in a military prison for more than three years without charges filed against him, has been indicted for allegedly providing support to Al Qaeda and conspiring to attack US civilians overseas, Attorney General Alberto Gonzales announced yesterday.

The indictment of Padilla and four codefendants by a Miami grand jury on Nov. 17 made no reference to his alleged involvement in a plot to detonate a radiological device -- a so-called dirty bomb -- in the United States, the government's original rationale for holding Padilla in a brig on a US Navy base in South Carolina. Padilla, a Brooklyn-born Muslim convert and former gang member, was seized in Chicago after arriving on a flight from Pakistan in May 2002.

But the indictment, which transfers Padilla from military to federal custody, removes him from judicial limbo, where he has languished since President Bush designated him an ''enemy combatant," stripping him of his right to a trial in a civilian court. The criminal charges, punishable by life in prison, could also help the White House avoid a potential Supreme Court showdown over whether Bush can detain US citizens indefinitely without due process, a legal debate central to Padilla's enemy combatant status and an issue the high court was set to consider.

''The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad," Gonzales said in a news conference. He would not say why Padilla wasn't accused of planning attacks in America, as previously alleged: ''I'm not going to comment about previous comments relating to conduct of any of the defendants in this particular case."

Padilla's legal team said the announcement validates their arguments that Padilla's long detention without charges violated his constitutional rights.

''It is a vindication of Mr. Padilla's legal position," one of his lawyers, Jenny Martinez, said in an interview. ''We have been arguing for years to charge him so he can face criminal trial."

Padilla was indicted along with Adham Amin Hassoun, a Lebanese-born Palestinian who lived in Broward County, Fla.; Mohammed Hesham Youseff, an Egyptian who also lived in Broward County; Kifah Wael Jayyousi, a Jordanian national and US citizen who lived in San Diego; and Kassem Daher, a Lebanese citizen who lives in Canada.

The indictment alleges they conspired to ''murder, kidnap, and maim" US citizens and others abroad and participated in a North American terror-support cell set up to send money and recruits overseas to Al Qaeda to help wage holy war against the West. Padilla is also accused of signing a ''Mujahideen Data Form" in 2000 to join a terrorist training camp in Afghanistan.

Gonzales said Padilla's trial is scheduled for September.

Padilla now faces charges far less substantive than the allegations the Bush administration cited to justify keeping him in near isolation without charging him and without access to legal representation for much of the past three years: that he planned to disperse radioactive material through a dirty bomb detonated inside the United States.

Padilla's capture, made within months of the Sept. 11, 2001, terrorist attacks, was held up as a key victory in the war on terrorism. Just last month, the White House listed his capture as among the 10 instances where intelligence and law enforcement agencies succeeded in disrupting terrorist plots.

Scott Silliman, a law professor at Duke University, said charges of conspiracy and providing material support to terrorists have become ''the bread and butter" for Justice Department lawyers seeking to prosecute terrorist suspects, because they are easier to prove in court. But he suggested that Padilla's indictment after three years in custody seems to be part of the government's strategy to avoid a Supreme Court review of the case.

Indeed, some legal scholars said they believe the White House is worried that the high court would examine -- and perhaps curtail -- Bush's broad wartime authority to detain and prosecute citizens the government thinks are threats to national security.

''They were looking for a way to avoid a bad result in the Supreme Court," Silliman said. ''The only way you can effectively moot the case is to charge him in the civilian courts."

The Bush administration has tried before to prevent an appellate review of Padilla's case, some legal scholars say. In December 2003, a year after his imprisonment, the government agreed to give Padilla access to a lawyer -- a constitutional right -- after attorneys acting on his behalf moved to appeal the matter to the Supreme Court. By charging Padilla as a civilian and bringing his case to federal court, the government eliminated his status as an enemy combatant, which takes away the issue his defense team wanted the high court to consider.

Still, Martinez said Padilla's legal team intends to petition the Supreme Court to review the legal basis for his original detention.

''They are trying to evade Supreme Court review of the Bush administration's constitutionality over the past three years," said Martinez, a Stanford University law professor. If Padilla is acquitted, she said, it's still possible the government could redesignate him as an enemy combatant and return him to the brig.

''There is no reason to believe they won't do it again," she said. ''They could make him an enemy combatant again and try to avoid review at the last minute."

But the Justice Department will try to convict him in a federal district civilian court, which Silliman contends might not be easy.

''The downside for the government is this is not why we were told he was being held in detention," he said.

Bryan Bender can be reached at bender@globe.com.