Once again, the U.S. government is back in court over a hot issue related to the War on Terrorism — this time taking a case to the partly-newly-reconstituted Supreme Court:
The case involves Jose Padilla, a U.S. citizen held as an “enemy combatant” for nearly four years and, aside from the specific issue stated at hand, the key issue lurking behind this case is the kinds of powers that the U.S. government — particularly the President — can wield during wartime. The Washington Post:
A federal appeals court infringed on President Bush’s authority to run the war on terror when it refused to let prosecutors take custody of “enemy combatant” Jose Padilla, the Justice Department said yesterday, as it urged the U.S. Supreme Court to intervene.
The sharply worded Justice Department filing was the latest salvo in an increasingly contentious battle over Padilla, a U.S. citizen arrested in Chicago in 2002 and initially accused of plotting to detonate a radiological “dirty bomb.” Padilla was held for more than three years by the military before he was indicted last month in Miami on separate criminal terrorism charges.
The U.S. Court of Appeals for the 4th Circuit refused last week to allow prosecutors to take custody of Padilla from the military and rebuked the Bush administration for its handling of the high-profile case. The Bush administration took strong issue yesterday with the Richmond-based court’s decision and appealed it to the Supreme Court.
It was another remarkable turn in Padilla’s case, which has evolved into a legal spat between the executive and judicial branches of government. The dispute is especially unusual because it involves the 4th Circuit, which has been the administration’s venue of choice for high-profile terrorism cases since the Sept. 11, 2001, terrorist attacks.
As the Post notes, what’s especially unusual is that the 4th Circuit has given the government lots of leeway on policies and issues. But on the Padilla case it didn’t:
The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla’s incarceration and engaged in “an unwarranted attack on the exercise of Executive discretion.” Prosecutors accused the court of going so far as to “usurp” Bush’s authority as the nation’s commander-in-chief and his government’s “prosecutorial discretion.”
According to the AP, Padilla’s lawyers are pressing the larger issue of war powers:
In their filing, Newman and Patel cited the Bush administration’s interpretation of the president’s war powers to justify its decision to hold Padilla – until recently – without charges in a military brig in South Carolina.
Padilla’s lawyers also said President Bush abused his war powers authority by approving warrantless surveillance of conversations between people in the United States and abroad who had suspected terrorist ties.
Such developments “underscore the need for this court to address the fundamental constitutional questions presented by this case,” the lawyers wrote.
“The government continues to defend this sweeping view of the president’s power to substitute military law for the rule of law and seeks to expand it further, arguing that the very authorities that it says justify the indefinite detention without charge of citizens also justify widespread spying on citizens without judicial warrant or Congressional notification,” Padilla’s lawyers said.
Padilla’s appeal deals not only with the broad questions of presidential power, but also seeks to resolve whether Padilla should remain in military or civilian custody.
The New York Times frames this issue this way:
The Justice Department, in an unusually strong criticism of a lower court that has historically been a staunch ally, said the earlier order blocking Mr. Padilla’s transfer to civilian custody represented an “unwarranted attack” on presidential discretion.
In last week’s ruling, the United States Court of Appeals for the Fourth Circuit in Richmond, Va., refused to allow Mr. Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terror attacks abroad.
The appeals court said that the Bush administration, in charging Mr. Padilla in criminal court in November after jailing him for more than three and a half years as an enemy combatant without charges, gave the appearance that it was trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration’s credibility in the courts.
So the question now becomes what the Supreme Court justices think of the administration’s actions: were they were valid or essentially designed to keep the Supreme Court from taking up the Padilla case? And, the larger question: will it use this case to sanction or constrain the executive branches existing interpretation of its wartime powers?
SOME OTHER VIEWS ON THIS ISSUE:
—The Talking Dog: “For the umpteenth time, boys and girls, this is the most important case of our lives: point blank, can our government, in the name of “protecting us”, just treat our most important constitutional protections as a dead letter… in short, are we a dictatorship… yes… or no?”
Just as I suspected all the people that are accused of terrorism are crying and saying that their rights were violated by wiretapping. Lawyers for “dirty bomb” suspect Jose Padilla have filed a brief with the Supreme Court urging it to take Padilla’s case. They are linking it to the NSA wiretapping controversy. The New York Times reported today that other defense lawyers in terrorism cases say they plan to bring legal challenges to determine if the NSA illegally used wiretaps to gather evidence against Muslim men with ties to al Qaeda. Yes with ties to al Qaeda! I do not care what the government needs to do to bring these scum bags down.
—SCOTUSblog (a MUST on Supreme Court issues) has a long post that must be read in full. A key assertion: “The government’s application, which went to Chief Justice John G. Roberts, is the latest dramatic development in one of the most significant test cases on presidential powers amid the war on terrorism. The Court’s reaction to the new gesture may provide the first sign of how the Justices feel about that constitutional controversy.”
If we’ve learned one thing about this administration it’s that it does not like being accountable to anyone else, doesn’t like checks and balances from co-equal branches of government, and doesn’t like being told “no.� The Founding Fathers, in their wisdom, created three equal branches of government, each providing checks and balances to the other, in order to prevent an imbalanced concentration of power — especially in the executive branch. Since taking office, and especially since 9/11, this administration has actively worked to strengthen presidential powers, claiming that the executive branch’s power “was eroded during the Watergate and Vietnam eras.� The latest example of the Bush administration’s war against its sibling branches comes in the battle between the Justice Department and the federal courts.
—The Legal Reader: “”Fundamental constitutional questions” indeed.”
—Right Side Of The Rainbow notes that the 4ths ruling came from Judge Michael Luttig, quotes it and adds: “Judge Luttig is no wide-eyed liberal. To the contrary, most conservatives would have preferred him to Sam Alito for the Supreme Court vacancy.”
Bush may yet regret the decision to attack the U.S. Circuit Court of Appeals for the 4th Circuit for its decision in the Jose Padilla case. The opinion was written by Judge Michael Luttig, a darling of conservatives and one of their favorite candidates to ascend to the Supreme Court.
Judge Luttig, who has impeccable conservative credentials, has backed the DOJ in previous Padilla actions, and has decried “judicial activism” with the worst of them, questioned the government’s motives in the Padilla case..
The stinging criticism leveled by the conservative Fourth Circuit — criticism that impliedly questioned the integrity of the Bush administration — is difficult to refute, and the SG would clearly prefer to duck the merits of Padilla’s claim that his detention has been unlawful. The Justice Department flip-flopped on Padilla because it didn’t want to defend in the Supreme Court the president’s claim to supreme power. The SG’s defense — look, we finally gave Padilla what he asked for, and anyway, we get to do what we want even if it seems we’ve been lying to you about Padilla all these years — is unconvincing.
The government’s request has gone to Chief Justice Roberts, who will likely punt an issue of this significance to the full Court. Will Bush’s decision to ignore wiretap laws influence the Court as it ponders the government’s request to look the other way in Padilla’s case?