"JUST WHEN it appeared the case of accused enemy combatant Jose Padilla couldn't get any weirder, the two parties have switched sides. In an emergency brief filed before the Supreme Court last week, the Justice Department asked the justices to step in and allow the government to transfer Mr. Padilla immediately from military to civilian custody so that he can face the criminal charges recently filed against him. This is the same Justice Department that had been arguing for 3 1/2 years that Mr. Padilla could be held without charge on President Bush's order as an al Qaeda fighter - for much of that time without even having access to his lawyers."
This case has all the appearance of the Bush administration on the run from having to defend it's actions in front of the Supreme Court. In an equal turn-around Mr. Padilla's lawyers are now objecting to his transfer to civilian custody.
In denying the Bush administrations request for transfer from military to civilian custody U.S. 4th Circuit Court of Appeals:
Judge J. Michael Luttig wrote that the government's behavior has "given rise to at least an appearance that the purpose of [its] actions may be to avoid consideration of our decision by the Supreme Court."
The Washington Post editorial takes exception to the Courts power to deny the government calling the decision "mischievous." Similarly they state, "This puts both sides in an impossible bind." And while they call the Bush administrations conduct "lamentable from the beginning" they also seem to accept without objection Solicitor General Paul D. Clement's claim that this "effectively transforms a ruling that the President may detain Padilla into a ruling that the President must detain Padilla militarily as an enemy combatant."
This claim strikes me as typical Bushie obfuscation. Judge Luttig's statement makes clear that the governments arguement is a weak and transparent attempt to avoid the judgement of the Supreme Court. This is hardly a statement forcing the administration to do anything other than present a case that has actual merit.
WaPo amazingly accepts Clement's interpretation of the ruling:
"One strains to recall another case in which the executive branch has been forced by the judiciary to detain someone against its will. That's not supposed to happen in the American system of government, and the Bush administration is rightly balking."
WaPo goes on to state, "The ruling is also extremely awkward for Mr. Padilla." I think this misses the point. The Bush administrations actions and case are what are extremely awkward for Mr. Padilla. The administrations maneauvering in this case is so extremely awkward as to be twisting the law and Constitution so far out of shape that it is becoming unrecognizable.
The government has argued that by transfering Padilla to civilian court that his 3 year incarceration in a military brig as an "enemy combatant" will be moot. Padilla's lawyer rightly argue otherwise and that his case ought to be heard by the Supreme Court, a decision they will take up on Jan. 13.
On this the post states:
"So Mr. Padilla is forced to argue against the very transfer he has been seeking so as to preserve an advantageous procedural posture until Jan. 13, when the justices will consider whether to take the case up.
It seems to me that the more accurate depiction of Padilla's position is that his lawyers are attempting to maintain their ability to strongly challenge the Bush administrations illegal and unconstitutional detention of their client. The Bush administration is trying to run from the law and they are trying to make sure they remain answerable for their actions.
The Post gets it right though when they say, "The justices, in our view, need to unlink these two questions."
Jose Padilla, as an American citizen, either needs to be charged with treason and tried accordingly or tried as a criminal and have his case handled by civilian courts. If I were his lawyer I would move for dismissal the moment he is transfered to the civilian court system. I don't see how one could possibly deny that the Bush administration has badly trampled his rights under Article III of the Constitution, as well as the 4th, 5th, 6th, and 8th amendments.