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Appeals Court Refuses to Move Jose Padilla , Blasts Bush

By Jeralyn, Section Terror Detainees
Posted on Wed Dec 21, 2005 at 01:59:16 PM EST
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The ultra conservative Fourth Circuit Court of Appeals showed some backbone today and denied the Government's request to move indicted detainee Jose Padilla to the custody of the Attorney General from military custody. You can read the opinion here. (pdf) Big defeat for Bush.

In a stinging rebuke to the Bush administration, a U.S. appeals court refused on Wednesday to transfer Jose Padilla from U.S. military custody to federal authorities in Florida until the Supreme Court considers his case.

The high court said bringing criminal charges against Padilla in Florida after he had been held by the U.S. military for more than three years as an enemy combatant created the appearance that the government may be attempting to avoid Supreme Court review of the case.

There's more good news:

The appeals court also rejected the government's request that it set aside its ruling that allowed the United States to hold Padilla as an enemy combatant without being charged. Wiping out that ruling would have made it virtually impossible for the high court to review the case.

The AP reports:

The decision, written by Judge Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month.

Luttig said the administration has risked its "credibility before the courts" by appearing to use the indictment of Padilla to thwart an appeal of the appeals court's decision that gave the president wide berth in holding enemy combatants.

Judge Luttig was on the Administration's short list of nominees for the Supreme Court at the time of Justice Roberts and Judge Alito's nomination.

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    Appeals Court Refuses to Move Jose Padilla , Blasts Bush | 10 comments (10 topical)
    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#1)
    by Talkleft Visitor on Wed Dec 21, 2005 at 02:48:29 PM EST
    the government may be attempting to avoid Supreme Court review of the case.
    That seems to be the theme of the current executive branch. It appears as if the Bush administration is trying to minimize the judicial branch of the government. And now they are pissed.

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#2)
    by Punchy on Wed Dec 21, 2005 at 02:48:38 PM EST
    I'm confused. So, Luttig rules to give the Bush Admin. this "wide berth" in dealing with these, but then is shocked when "wide berth" morphs into this? I'm glad Luttig realized his mistake and corrected it. Perhaps other judges will take note when leaning toward granting this King such power...

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#3)
    by Peter G on Wed Dec 21, 2005 at 03:00:53 PM EST
    Yes, this is a rebuke to the Dept of Justice's disappearing-pea-under-the-moving-cup litigation strategy. On the other hand, Padilla's attorneys had concurred in the gov't attys' request that Padilla be moved out of virtually incommunicado military custody into the normal federal jail (or bail, even), as should be his right on account of being indicted for a crime. He is no longer a person whose detention (legal or illegal) as an "enemy combatant" the government seeks. So, while this is a rebuke to the administration's playing fast and loose with the courts, it is not a win for Mr. Padilla personally. It is now, in effect, the Fourth Circuit that is holding Mr. Padilla as an "enemy combatant."

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#4)
    by Quaker in a Basement on Wed Dec 21, 2005 at 03:29:15 PM EST
    created the appearance that the government may be attempting to avoid Supreme Court review of the case.
    Bush admin: "Uh, yeah. Is that a problem?"

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#5)
    by Talkleft Visitor on Wed Dec 21, 2005 at 07:19:09 PM EST
    What ever happened to the dirty bomb?

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#6)
    by wg on Wed Dec 21, 2005 at 07:21:37 PM EST
    Continuing to keep Mr. Padilla in a military brig is hugely unfair to him. The court apparently decided bigger issues are at stake here and ruled accordingly. This raises two issues: a) why are detention conditions so harsh? Is this another example for pathological cruelty of our jailers? The gentleman is presumably presumed innocent, his being held by the government is solely for the purpose of ensuring his availability for the trial, not to penalize him in any way. Thus he should enjoy full freedoms accorded citizens of this country, the only exception being unable to leave the detention center. The conditions shouldn't be any harsher than those prevalent in house arrests. b) why there is no compensation mechanism for those who are unfairly penalized in the interest of justice or some higher principle? That's grossly unfair for individual citizens, if our collective interest is important enough to hurt them we should be responsible enough to compensate them.

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#7)
    by Talkleft Visitor on Wed Dec 21, 2005 at 08:27:12 PM EST
    This is another amazing judicial opinion from another bench packed with conservative Republican jurists. I read this opinion in awe. This court is obviously pissed off at the Executive Branch trying to usurp judicial oversight by their attempt to do an end run around the ripeness and mootness doctrines. It seems that the sleeping giant, the Judicial Branch, has finally been awakened by the Executive Branch's utter contempt for the rule of law and the Constitution. Get ready for more modern-day judicial miracles. This also seems to answer one of the questions I had about this case some months ago (on this blog), namely whether the Executive Branch's scurrilous actions in this case, by themselves, would be enough for a court (I was presuming the USSC) to carve out another exception to the mootness doctrine. Apparently, it seems that the 4th Circuit was wondering the same thing - and were not about to leave such a determination to chance. It also appears that this may be headed to the USSC anyway. Good. L'etat, c'est moi, non! Lex non a rege est violanda, oui!

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#8)
    by wg on Wed Dec 21, 2005 at 10:28:57 PM EST
    Appears you are right, even FISA court judges are stirring although I suspect only because recent FISA publicity left them with a pretty lousy public image.

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#9)
    by cpinva on Thu Dec 22, 2005 at 01:24:20 AM EST
    Luttig said the administration has risked its "credibility before the courts" by appearing to use the indictment of Padilla to thwart an appeal of the appeals court's decision that gave the president wide berth in holding enemy combatants.
    boy, picked right up on that! you just can't get anything by these guys.
    Judge Luttig was on the Administration's short list of nominees for the Supreme Court at the time of Justice Roberts and Judge Alito's nomination.
    i suspect he just dropped off the short list for any future nominations by mr. bush.

    Re: Appeals Court Refuses to Move Jose Padilla , B (none / 0) (#10)
    by The Heretik on Thu Dec 22, 2005 at 06:21:04 AM EST
    Agree this is a defeat for government, but they hope they can wash away with the bluster now going on about the presidents "authority" as commander in chief. More on this at Dirty Game.

    Appeals Court Refuses to Move Jose Padilla , Blasts Bush | 10 comments (10 topical)