Wednesday, December 21, 2005

I don't get it

NY TIMES: Court Refuses U.S. Bid to Shift Terror Suspect

WASHINGTON, Dec. 21 - A federal appeals court delivered a sharp rebuke to the Bush administration Wednesday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges...

What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who in September had provided the administration with a sweeping court victory, saying President Bush had the authority to detain Mr. Padilla, an American citizen, indefinitely without trial as an enemy combatant.

But the judges were clearly angered when the administration suddenly shifted course on Nov. 22, saying it no longer needed that authority because it now wanted to try Mr. Padilla in a civilian court. The move came just days before the government was to file legal papers in Mr. Padilla's appeal to the Supreme Court. The government said that as a result of the shift, the court no longer needed to take up the case. Many legal analysts speculated at the time that the administration's sudden change in approach was an effort to avoid Supreme Court review of the Fourth Circuit ruling.

In the opinion on Wednesday, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding Mr. Padilla's detention for more than three years in a military brig as an enemy combatant.

Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to the government's requests because that would compound what was "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."


Prof. Carl W. Tobias of the University of Richmond Law School, who has written about the government's legal strategy in terrorist cases, said that the ruling on Wednesday was an extraordinary rebuff to the Bush administration by the judicial branch.

"It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," Professor Tobias said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill used in expending their institutional capital in support of Mr. Bush's action only to have the government decide that it no longer wanted the authority that it had sought so strongly.


Ms. Scolinos said the department was considering what to do in light of the court's refusal to authorize the transfer of Mr. Padilla. The likely outcome of the appeals court panel's decision, some lawyers believed, was that the Supreme Court would be obliged to consider the case.

Jonathan M. Freiman, a lawyer for Mr. Padilla (pronounced puh-DILL-ah), said that the appeals court "seems to have agreed with what we asserted in our brief, that the government has been attempting to evade Supreme Court review."

Mr. Padilla ... was arrested at O'Hare International Airport on May 8, 2002. Government officials initially portrayed him as someone who was considering a plot to explode a radioactive "dirty bomb" in some American city and then to destroy gas lines to destroy public buildings.

In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan.


[Judge Luttig] said the government "must surely understand" that it has left the impression that Mr. Padilla may have been held for more than three years by mistake.
Maybe I misjudged Luttig, who when first hearing the Padilla case implied that this President ( the one who warned about Saddam's "nuclear mujahideen") should be allowed to do anything he wants. I thought he was a thug who didn't care about the civil liberties of potentially innocent people. But maybe Luttig just had the extraordinarily bad sense to trust this President (the one who said, "you're doing a heck of a job, Brownie") to be a good enough judge of character to only deem guilty people enemy combatants. Maybe Luttig realizes he made a mistake when he assumed this President wouldn't make those kind of mistakes.


Blogger Roger, Gone Green said...

There are folks on the right who really believe their own hype and really do try live it, even as most don't seem to bother. Many of these turn out to be judges, given their interest in rules and rule enforcing. When one of the Social Darwinistic, might-makes-right, bigoted, it's-only-illegal-if-you-get-caught sort of right-wingers runs into one of these straight-shooters, the shock on the face of the evil ones is priceless. I'd say this is a variant of that moment.

By the by, stay tuned: I'd say Chief Justice John Roberts is the Straight Shooter variety of conservative (whereas Alito is the other sort). When this -- and other administration cases get to the Supremes there will be hell to pay!

2:01 PM  
Blogger michael said...

Thanks for the comment. I think you may have something there.

The irony, of course, is that Jose Padilla is kept in the military brig longer without a chance to face his accusers in court.

12:19 AM  

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