On criminal justice and national security issues, the U.S. Court of Appeals for the 4th Circuit is widely considered the most government-friendly federal appeals court. So when a 4th Circuit panel rebukes the Bush administration for its handling of an accused terrorist, in a decision written by a judge who was on the president's Supreme Court short list, even the president's most ardent supporters have to wonder what's going on.
What's going on is that President Bush's broad view of his own powers and his disregard for the other branches of government have provoked a backlash that goes well beyond the carping of partisan Democrats. Even a court that was prepared to uphold the president's authority to detain suspected terrorists as "enemy combatants" is not prepared to let him submit his actions to judicial review only when he feels like it.
The 4th Circuit case involves Jose Padilla, a U.S. citizen who was arrested at Chicago's O'Hare International Airport in 2002. Declaring that the arrest had foiled a plan to detonate a radiological bomb in the United States, the government soon transferred Padilla to military custody, where he has remained ever since.
Last year the Supreme Court ruled that the Authorization for the Use of Military Force that Congress passed after Sept. 11 allowed the president to detain another U.S. citizen, Yaser Esam Hamdi, who was captured in Afghanistan in 2001. But the Court also said Hamdi had a right to contest his enemy combatant status before a "neutral decision maker," a prospect the administration avoided by releasing him.
By the time the 4th Circuit heard Padilla's case in July 2005, the government had stopped talking about the much-publicized "dirty bomb" plot and instead was accusing him of planning to blow up apartment buildings by sabotaging their natural gas supplies. It also was emphasizing that Padilla, like Hamdi, had sided with the Taliban in Afghanistan.
In a September decision, the 4th Circuit concluded that Congress' post-Sept. 11 resolution had given the president the authority to keep Padilla in military custody, assuming the allegations against him were true. But two months after this decision, the Bush administration unveiled a criminal indictment of Padilla, asked the 4th Circuit for permission to transfer him to civilian custody, and said the court's ruling should be withdrawn because it was no longer necessary. Taken aback at the government's reversal, the court said no.