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Terror case tests reach of federal power

Suspected terrorist Jose Padilla persists in a bid to get the Supreme Court to review US government's legal tactics.

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The US is playing a shell game with one of the nation's most important - and perhaps dangerous - prisoners.

Through aggressive legal tactics, the government has put alleged "dirty bomb" conspirator Jose Padilla through an odyssey unprecedented in American jurisprudence.

In the 3-1/2 years since his arrest at Chicago's O'Hare International Airport, the government has repeatedly asserted unilateral power in a way that has undercut Mr. Padilla's ability to defend himself.

In addition, Justice Department lawyers have used that same unilateral power to help insulate their actions from the scrutiny of the judiciary - including the US Supreme Court.

Critics see such tactics as a troubling symptom of the Bush adminstration's expansive view of presidential power. Supporters say the tactics are designed more to help win the war on terror than to win court battles.

That government strategy has left unresolved a string of legal challenges raising some of the most fundamental issues of US constitutional law. They include the president's authority to name US citizens as "enemy combatants" in the war on terror and what rights, if any, protect such citizens.

"At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens in assessing the Padilla case in 2004. "If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Justice Stevens wrote those words in dissent of a 5-4 decision by the high court to dismiss Padilla's case on jurisdictional grounds rather than confronting the central constitutional issues. Now, 18 months later, Padilla's case is back before the Supreme Court. The justices are being asked to consider the merits of Padilla's arguments and, by extension, to judge the legality of the administration's actions. Many court watchers believe at least five of the justices are prepared to rule in Padilla's favor should the high court agree to take up his case.


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