A conservative court tells Bush: Enough

The 4th Circuit says it's time to stop playing games in an "enemy combatant" case.

By Tim Grieve
Published December 22, 2005 2:49PM (EST)

When federal government agents arrested Jose Padilla at Chicago's O'Hare Airport in May 2002, then Attorney General John Ashcroft claimed that the government had just broken up a scheme to explode a "dirty bomb" inside the United States. But when it came time for the government to charge Padilla with that crime, George W. Bush deemed Padilla an "enemy combatant," and the government yanked him out of the criminal justice system and put him into the custody of the U.S. military.

That's where he has been for the past three and a half years, and the Bush administration has argued repeatedly that that's where he must stay. But with Padilla's case headed back to a clearly skeptical U.S. Supreme Court, the Bush administration decided last month to switch gears once again. It charged Padilla in an existing criminal case in Florida -- one that has nothing to do with any alleged dirty bomb -- and said it would be transferring him back to the criminal justice system for trial.

That was the plan, at least. But on Wednesday, the U.S. Court of Appeals for the 4th Circuit -- the conservative, administration-friendly court that is Bush's venue of choice for terrorism cases -- issued a ruling in which it refused to let the Bush administration transfer Padilla out of military custody. The upshot of the court's opinion: The shell game has gone on long enough, and the courts aren't interested in being jerked around anymore.

Writing for the court, Judge J. Michael Luttig -- frequently mentioned as a potential Bush Supreme Court nominee -- described the Bush administration's judicial gamesmanship in unusually stark terms: "The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued on the government's representation that Padilla's military custody was indeed necessary in the interest of national security, the government determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement authorities and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla."

Luttig complained that the government's request to transfer Padilla back to the criminal justice system "included no reference to, or explanation of, the difference in the facts asserted to justify Padilla's military detention and those for which Padilla was indicted." Luttig also noted that the government styled its request an "emergency application," despite the fact that Padilla had been in custody for almost four years and the only "emergency" facing the government seemed to be the upcoming Supreme Court proceedings in Padilla's case.

Allowing the administration to continue its game by transferring Padilla out of military custody, Luttig wrote, would leave, "in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court."

In closing, Luttig delivered a final blow: The Bush administration's actions in the Padilla case, he said, may undermine the government's credibility with the courts and hurt the war on terror as well.

The Bush administration's actions "have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake -- an impression we would have thought the government could ill afford to leave extant," Luttig wrote. "They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the president possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror -- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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