Did I misspeak about Jose Padilla being unknighted as an "enemy combatant"? Maybe! (and hold onto that t-shirt, Jose!)
In a major setback to the government this week, a three-judge panel of the Fourth Circuit refused both requests and questioned the government's motives in seeking to move Padilla to Florida and vacate the earlier ruling.
The administration's actions create "an appearance that the government may be attempting to avoid consideration of our decision [in the Padilla case] by the Supreme Court," writes Judge J. Michael Luttig in a 13-page order released on Wednesday.
"We believe that the issue [in Padilla's case] is of sufficient national importance as to warrant consideration by the Supreme Court," Judge Luttig writes.
The CSM reports 12/23/2005 that the US government is slowly losing traction on the tactic to avoid the Supreme Court questioning the Presidential abilities to designate someone an "enemy combatant." A few weeks ago, the government un-designated Jose "Dirty Bomber" Padilla as an "enemy combatant" and ordered him sent to a Miami prison to face criminal charges (conspiracy), thus releasing him from a 3.5 year hold in a Navy brig. The appeals process wound Padilla's case through the system regarding the legality of the designation that placed him effectively outside the legal system until the only place that it could be taken would be the Supreme Court. There, the government would be directly confronted to legally justify an extra-legal situation. This question is way too hot to have that much scrutiny, especially when the consequences of losing would be having to go through a legal system which requires proof of past acts for convictions. There's just no way to convict someone of the crime of maybe thinking of blowing up an apartment building with a leaky neutron bomb - we'd have to wait until it happened. Even then, like Germany, our legal system might arbitrarily release terrorists or simply give them slap-on-the-wrist sentences (under 10 years).
Luttig's the same judge who wrote the opinion upholding the detention of Padilla and said that the appeals court was concerned that the administration might be seen as having intentionally made the enemy combatant case moot "not as legitimate justification but as admission of attempted avoidance of review." I can't figure this out - do the judges want the case to be brought before the Supreme Court because, in their eyes, the only legitimate way to fight this out is in their arena, or are they actively steering the case towards the Supreme Court in order to press the legitimacy of Presidential powers? It's not clear that those options are mutually exclusive, either. It seems that courts want to assert the "check and balance" power of the Judiciary and that's fine, but at what point does it become a burden to the other branches? Is it something spectacular, like this case, or is it smaller things? When do they bound, blind eyes of Justice actually become a detriment?
The court said that while a president's power to detain an enemy combatant should not be taken lightly, the government cannot "yield to expediency with little or no cost to its conduct of the war on terror,'' an impression the court thought the government could not afford.
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