Ping Pong Padilla

Justice Department prosecutors have reacted rather strongly towards the 4th Circuit's ruling that the government could not transfer Jose Padilla to civilian court to face some other, wholly unrelated charges that, at the time, appeared to come out of nowhere. It looked to everyone, including the 4th Circuit, that the government was attempting to avoid a hearing by the Supreme Court, which would be the final arbiter of the government's claimed right to hold citizens indefinitely and without trial as long as the label "enemy combatant" was plastered all over the prisoner. To most, this was a clear violation of constitutional rights and when the DoJ switched course on the charges, it seemed obvious that they were not at all confident as to the outcome of a Supreme Court decision on this.

As was well-indicated at the time, the 4th Circuit Court of Appeals is the same court that ruled in favour of the indefinite military detainment of Padilla on the grounds that he was an "enemy combatant" despite his status as a US citizen. This decision was appealed and was schedule to be heard by the Supreme Court.

Formerly praised for this and other government-friendly decisions, now the Justice Department is claiming that the 4th Circuit court is infringing on the President's "authority to run the war on terror." They never get tired of using that one, do they?

This is a particularly odd claim from the DoJ considering that it was this same court that ruled in favour of indefinite detention in the first place. Short listed for the Supreme Court nomination that eventually went to Alito, the 4th Circuit's Michael Luttig is now being portrayed as flip-flopper in the war on terror.

Perhaps the DoJ just thinks that the earlier ruling was a ruse designed to get the case in front of the Supreme Court, whereby those damnable liberals on the bench might actually shoot down the whole indefinite detention position. Those liberals can be cunning fiends, playing the courts like that.

In response to the 4th Circuit's rebuke of the Padilla bait-and-swtich, the DoJ has decided that, rather than actually pursue the Padilla case directly and defend their position in front of SCOTUS, Justice officials are appealing the 4th Circuit's decision to refuse the Padilla transfer. This is not the behaviour of anyone confident of their legal reasoning.

Frankly, I wouldn't be at all surprised to see the DoJ suddenly withdraw from the civilian court transfer should Alito find his way onto the big bench. In fact, this appeal may stall things long enough for that to happen. With Alito and Roberts on SCOTUS and towing the police-state line, the DoJ could be fairly confident that almost any decision on government infringement on individual rights would go their way. Anyway, keep an eye open for that move.

A little summary:

Before Congress rescinded habeas corpus for "enemy combatants," Padilla's case was heard, finally, by the 4th Circuit Court of Appeals, which ruled that Padilla could be held by the military as he had been. An appeal of that decision was filed and the Supreme Court was due to hear the case.

Some while later, the DoJ suddenly charged Padilla with unrelated crimes and requested his case be transfered to civilian court in Miami. The 4th Circuit, obviously pissed off, said no, you have to have your case heard, as is, by SCOTUS and refused the transfer.

After first being thrilled with the 4th Circuit's earlier decision that permitted the "enemy combatant" detention policy and thus supported Bush in the war on terror, now the DoJ is claiming that the 4th Circuit is obstructionist and getting in the way of the efficient prosecution of the war on terror.

***

The DoJ, as any arm of the Bush adminstration does, has issued a few strongly worded and amusingly ironic statements regarding the 4th Circuit's smackdown. Much as the White House howls about anyone questioning their authority to spy on Americans or whatever other shit they have done or may be doing, the Justice Department (and what on Orwellian perversion that term has become) has called the decision

an unwarranted attack on the exercise of Executive discretion.

Whatever other qualities this particular executive may have, discretion is not one I would attribute them.

I don't know how these guys can write stuff like this. They must all be rolling on the floor, howling with laughter, like I imagine script writers for The Daily Show must do:

"Ha, ha, ha. Yeah, yeah, use that 'unwarranted attack' line again. Ah, ha, ha, ha!

Oh no you're not going to pull out 'usurp authority'?! Stop, stop, you're killin' me! Ah, ha, ha, ha!!"

But it gets even better. This one must have busted more than a few guts:

There is nothing remotely sinister about the government's effort to pursue criminal charges that minimize evidentiary complications. There is no basis for questioning the good faith of the government in moving forward with the indictment.

DoJ lawyers, the gift that keeps on giving. Ho, ho, ho.