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Padilla's Lawyers Slap Bush Administration

by TChris

In an emergency filing yesterday, the Solicitor General asked the Supreme Court to transfer Jose Padilla to a civilian court despite the Fourth Circuit’s bewilderment at the Justice Department’s flip-flopping claim that Padilla is an enemy combatant. The SG argued that the Fourth Circuit’s decision amounted to “an unwarranted attack on the exercise of executive discretion.”

Firing back today, Padilla’s lawyers seized the chance to embarrass the Bush administration with the recent news that the president used his “executive discretion” to intercept telephone calls of persons who were within the nation’s borders and subject to the protections of the nation’s laws without obtaining a warrant.

Lawyers Donna Newman and Andrew Patel told the high court in papers filed Tuesday that the justices must step in "to preserve the vital checks and balances" on the president.

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.

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?

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  • Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#1)
    by Dadler on Wed Dec 28, 2005 at 04:38:10 PM EST
    Stay tuned on this one, no doubt. But "impliedly"? Never heard that one. "Implicitly" perhaps? Can this admin's breach of the constitution survive the oncoming rush of legal and moral scrutiny? I just don't think so. Slick PR and questioning your opponent's patriotism only go so far. And I think we've reached to dead en for that. The piper will soon be looking for payment.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#2)
    by Punchy on Wed Dec 28, 2005 at 04:47:25 PM EST
    I wish I could just stop being so damn cynical all the time, but I simply cannot foresee any means by which lawyers, judges, and/or courts in general can/will "force" the Bush Admin to come clean about the who and what of this wiretapping. They refused Congress during the Bolton fiasco, they've chastized a paper for even printing about it, and even vowed to continue. It's apparent that this Admin. neither recognizes its mistake(s), nor plans to correct or alter its behavior. They will claim "national security" on everything. All docs, memos, and emails. Is it illegal to deny the judge's orders? Of course, but since when has legality mattered to this Admin?

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#3)
    by ltgesq on Wed Dec 28, 2005 at 07:24:35 PM EST
    Donna and I were classmates together at the National Criminal Defense College together in 1997. She is a great lawyer, and Padilla should thank his lucky stars that the federal judge in New york appointed her to this case. I share a fear that this administration will mark the end of the limited respect the other branches have had for the judiciary. Not since Marbury v. Madison, have we run such a risk to the doctrine of the court's final say regarding the interpretation of the law and the constitution. I hold little hope out that bush and cheney would actually decline a direct challenge to the court. On another site, i suggested the next argument we were going to see was the argument that the judiciary's oversight was a violation of the seperation of powers. Welcome to the imperial presidency. I hope it ends someday.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#4)
    by The Heretik on Wed Dec 28, 2005 at 07:27:09 PM EST
    Stranger and stranger, worse and worse, logic lost, reason denied. The net is cast wide. And there was a time when the Republicans said they were for limited government. Oy.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#5)
    by Talkleft Visitor on Wed Dec 28, 2005 at 07:42:23 PM EST
    Great 'Southern Strategy' for regaining House in '06 given today by Clinton. Details here.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#6)
    by Talkleft Visitor on Wed Dec 28, 2005 at 10:52:01 PM EST
    Okay, the Fourth Circuit, a Bush rubber stamp court almost as much as the Fifth Circuit, has finally become fed up. Padilla's lawyer's take a shot at bringing up the issues. And the new Supreme Court now has to face the issues they've been ducking for years. I'm concerned, but interested. It is now time to find out how the Republican courts are finally going to rule on the Imperial Presidency.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#7)
    by Talkleft Visitor on Wed Dec 28, 2005 at 11:44:15 PM EST
    Dadler Impliedly is a word. It's not synonymous with implicitly.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#8)
    by Talkleft Visitor on Thu Dec 29, 2005 at 05:56:04 AM EST
    Just two simple points.......... A.
    "...that the president used his “executive discretion” to intercept telephone calls of persons who were within the nation’s borders and subject to the protections of the nation’s laws without obtaining a warrant."
    This, even though it may not be applicable to Padilla, is very typical of a leftist disinformation campaign. Persons with-in the United States borders who are not United States citizens have absolutely zero constitutional rights or protections. Get this straight, because it is important. After all as you may recall, all of the hijackers on 9/11 were residing in the US, but none were constitutionally protected and W would have had every right and responsibility to spy on these foreign agents. B. Apparently you people have not read the results of the Rasmusin (sp) poll on this issue. 69% of all Americans believe the president has the right to spy on even US citizens who are associated with terrorists. 80% of republicans believe the same and here is the real kicker, 51% of democrats believe he has this right and responsiblity. Not that these opinions change the law, but as a campaign issue, once again the left has clearly demonstrated that they do not have the spine or the common sense to take charge of the security of this nation or its people. And once again the left has clearly demonstrated that they are wholey and completely out of touch with mainstream America. When will you people learn?

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#9)
    by Dadler on Thu Dec 29, 2005 at 06:32:59 AM EST
    Variable, How do you sleep at night being so scared? Oh wait, King George is protecting you. The only thing we have to fear is fear itself is right. But now we're even afraid of ourselves. You trust King George and his minions, I don't. That's the extent of this. All you other nonsense about "The Left" is as useless as if I'd based my criticism of your statement on nothing more than bashing "The Right". It's a bunch of empty crap, in other words. This administration has lost ALL ability to be considered credible, trustworthy, competent, everything. You wanna sacrifice innocent people so you can feel safe in your down comforter, that's on you. Many people don't, and are willing to die right here in their own country defending it. I don't get your willing to do anything but sit around and empower others to thug it up for you. So be it.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#10)
    by kdog on Thu Dec 29, 2005 at 06:35:05 AM EST
    Persons with-in the United States borders who are not United States citizens have absolutely zero constitutional rights or protections
    That's a lie. All US persons, not just citizens, have constitutional protections. That includes legal aliens, persons with valid visas, etc. BTW, Padilla is a citizen, and his being denied his constitutional protections is a crime. Plain and simple for people who don't obsess over the unlikely event of being blown up in their bed tonight, like Mr. "Freedom's too scary" Variable.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#11)
    by Dadler on Thu Dec 29, 2005 at 06:36:18 AM EST
    Excellent post, K-dog. Spot on.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#12)
    by Talkleft Visitor on Thu Dec 29, 2005 at 06:51:40 AM EST
    Would that the slapping were more than figurative.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#13)
    by Talkleft Visitor on Thu Dec 29, 2005 at 08:53:20 AM EST
    That's a lie. All US persons, not just citizens, have constitutional protections. That includes legal aliens, persons with valid visas, etc.
    Perhaps, Kdog, you would like to back this statement up, or should you also be considered just an extension of the already traiterous ongoing disinformation campaign.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#14)
    by Dadler on Thu Dec 29, 2005 at 09:31:26 AM EST
    Ah, Variable is out with the "traitor" nonsense again. Nothing more intellectually thuggish than labeling traitorous a dissenting American who's actually using his freedom. Very totalitarian of you. Disappointing, my friend. And you actually think the press more dangerous than the actual POWERS THAT BE? What are you using as the basis for trusting a word the administration says? Certainly not a track record of it. You're hoping, or simply a blind partisan. Fine. Own up to it.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#15)
    by kdog on Thu Dec 29, 2005 at 09:50:26 AM EST
    Here's the backup.
    i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this
    I agree there is a traiterous disinformation campaign going on...in the White House and Congress. You're either with freedom, warts and all, or are against it. It's clear which camp you're in Mr. Variable. BTW, I am very happy to learn you weren't blown up in your bed since you last posted. It must be hard living in a war-torn region.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#16)
    by Talkleft Visitor on Thu Dec 29, 2005 at 11:54:35 AM EST
    Alright then, Kdog, I admit I was wrong to not include aliens who are seeking permanent citizenship under the umbrella of constitutional protection, and I concur that these people should be afforded constitutional protections, however, by your own statements you have excluded anyone who is not a US citizen or seeking permanent citizenship from these protections. This means that foreigners are not protected, this means that foreigners on student visas are not protected, this means that illegal aliens are not protected, this means none of the 9/11 hijackers were protected. This means that, as I stated earlier, W has every right and responsibility to spy on everyone in the United States who is not a citizen or a person who is lawfully seeking and qualified to receive citizenship.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#17)
    by Talkleft Visitor on Thu Dec 29, 2005 at 11:58:35 AM EST
    Persons with-in the United States borders who are not United States citizens have absolutely zero constitutional rights or protections.
    Variable, Click here for a definition of how "person" is defined in the 14th amendment. Pay attention to this statement:
    As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.
    At the end of that statement on Findlaw's Website is a footnote reference to the following court cases:
    Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).
    In short, your statement is completely false.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#18)
    by Talkleft Visitor on Thu Dec 29, 2005 at 02:15:39 PM EST
    Yeah Variable...in your face! So if Hitler was able to smuggle himself into the US, he could have sued and (with the help of the ACLU) actually got an order for us to cease & desist in our war effort against him. So put that in your crack pipe & smoke it! All sarcasm aside.... I'm sooo certain this is what the founding fathers had in mind...aren't you? I'm also VERY glad none of these bleeding hearts were around back then....cause we'd all be speaking German. After all...we certainly wouldn't have had the 'right' to piss them off by actually protecting ourselves. And any secret meeting of the field generals would have been posted in the NY times and FDR would have cought hell from the media for 'doing things in secret' and wanting to protect the USA. For all you libs out there....does any of this sound crazy (familiar) to you?

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#19)
    by Talkleft Visitor on Thu Dec 29, 2005 at 08:31:19 PM EST
    I'm sooo certain this is what the founding fathers had in mind...aren't you?
    BB, Section I of the 14th amendment:
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Variable's statement that non US citizens are not protected under the constitution was completely false and has nothing to do with "bleeding hearts" and what the Germans did during Hitler's reign. As to your statement regarding the founding fathers, the 14th amendment was ratified post-Civil War on July 9, 1868. This occurred after the founding fathers had passed on.

    Re: Padilla's Lawyers Slap Bush Administration (none / 0) (#20)
    by kdog on Fri Dec 30, 2005 at 09:43:39 AM EST
    WWII/WOT comparisons are utterly useless fellas.