Transfer heat

Jacob Sullum
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Posted: Dec 28, 2005 12:04 AM

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asked the 4th Circuit for permission to transfer him to civilian custody, and said the court's ruling should be withdrawn because it was no longer necessary.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.

 In an opinion by J. Michael Luttig, the three judges who had upheld the president's detention authority said they were disturbed by the appearance that the government was trying to avoid Supreme Court review. They also noted that Padilla's indictment, which charges him with conspiring to support terrorism and commit violence abroad, "made no mention of the acts upon which the government purported to base its military detention of Padilla."

 Luttig wrote that by keeping Padilla in a brig for three and a half years without trial, then deciding to try him after all once a court approved the detention, the government "left the impression that Padilla may have been held for these years, even if justifiably, by mistake." By pressing the claim that the president has the authority to indefinitely detain anyone he labels an enemy combatant and then seeming to back away from that claim, Luttig said, the government left the impression that "the principle in reliance upon which it has detained Padilla ... can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."

 Luttig warned that the administration's actions may hurt "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." If this episode does result in greater judicial skepticism about assertions of executive power, perhaps we should be thankful to the president for overplaying his hand.