The latest wrangling in the Jose Padilla case is proof positive that a true showdown is looming between the president and the two other co-equal branches of government over the extraordinary powers grabbed by the White House since 9/11... From WaPo:
U.S. Defends Conduct in Padilla Case Supreme Court Asked To Overrule 4th Circuit
By Jerry Markon Washington Post Staff Writer Thursday, December 29, 2005; A04
A federal appeals court infringed on President Bush's authority to run the war on terror when it refused to let prosecutors take custody of "enemy combatant" Jose Padilla, the Justice Department said yesterday, as it urged the U.S. Supreme Court to intervene.
The sharply worded Justice Department filing was the latest salvo in an increasingly contentious battle over Padilla, a U.S. citizen arrested in Chicago in 2002 and initially accused of plotting to detonate a radiological "dirty bomb." Padilla was held for more than three years by the military before he was indicted last month in Miami on separate criminal terrorism charges.
The U.S. Court of Appeals for the 4th Circuit refused last week to allow prosecutors to take custody of Padilla from the military and rebuked the Bush administration for its handling of the high-profile case. The Bush administration took strong issue yesterday with the Richmond-based court's decision and appealed it to the Supreme Court.
It was another remarkable turn in Padilla's case, which has evolved into a legal spat between the executive and judicial branches of government. The dispute is especially unusual because it involves the 4th Circuit, which has been the administration's venue of choice for high-profile terrorism cases since the Sept. 11, 2001, terrorist attacks.
The 4th Circuit has given the government extraordinary latitude on national security matters, ruling for prosecutors in the cases of Sept. 11 conspirator Zacarias Moussaoui and Yaser Esam Hamdi. Hamdi and Padilla are the two U.S. citizens held as enemy combatants as part of the government's campaign against terror since Sept. 11.
The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla's incarceration and engaged in "an unwarranted attack on the exercise of Executive discretion." Prosecutors accused the court of going so far as to "usurp" Bush's authority as the nation's commander-in-chief and his government's "prosecutorial discretion."
In Padilla's case, the same three-judge panel that is now drawing the government's ire strongly backed the president's authority to hold Padilla without charges or trial in an earlier ruling. That decision, like the one refusing to authorize Padilla's transfer, was written by Judge J. Michael Luttig, who was a contender to be nominated by Bush to the Supreme Court this year.
Chief Justice John G. Roberts is the Supreme Court justice who oversees cases from the 4th Circuit, but it was unclear yesterday whether Roberts would rule himself on the government's request for Padilla's transfer. The full court is considering whether to take up the merits of Padilla's detention by the military.
Central to this case is the question of whether the president can essentially act as policeman, prosecutor, judge and jury by seizing and indefinitely detaining an American citizen on suspicion of terrorist activities the government isn't even prepared to prove in court. Padilla has been held incommunicado for nearly four years on that basis, and the 4th Circuit has allowed it. Now, it seems, the judges, (including Mr. Luttig) like Congress, are waking up and smelling the Constitution, and are refusing to hand Padilla over to the uncertainty of presidential discretionary lawmaking by fiat. (If Michael Luttig has gotten here, things must be really, really bad.) Because if the president has that power -- think about it -- he literally has been given the power of life and death over every man, woman and child inside this country, not to mention on whatever foreign "battlefield" he sees fit to scour for "the enemy." As writer Mike Whitney wrote in CounterPunch earlier this year:
The presumption of innocence is foundational to any democratic form of government. Without that presumption, the state is free to exert whatever control it arbitrarily chooses in the incarceration or punishment of its citizens. This effectively destroys the firewall that safeguards the individual from the vagaries of government power and intrusiveness. It is absurd to talk about democracy if the most fundamental of protections for its citizens are not provided. When the presumption of innocence is denied, justice is denied, and democracy withers.
For the first time in American history this principle is being challenged outright in the government's case against Jose Padilla. The Bush Administration is claiming that the president has the authority to strip a citizen of his constitutional rights in the name of national security. If they are successful in their efforts, the "inalienable" rights of man will cease to be. Citizens will no longer be protected by clearly articulated due process rights interpreted by an independent judiciary, but quickly dispatched by executive fiat. Justice will be dispensed at the discretion of the president.
Saddam Hussein couldn't have asked for more. What makes this case even more outrageous is that the government has already dropped its original reason for holding Padilla -- the supposed "dirty bomb plot" -- ratcheting the charges down now to a series of vagueries about plotting to maim and destroy inside the U.S. Yet the new justice department under Al Gonzalez asserts the same right to hold Padilla indefinitely as the old Ashcroft J.D. did when it thought he was a dirty bomber. New crime -- new, less urgent wartime rationale, same result: indefinite detention at the discretion of the president. As Luttig's original opinion refusing to hand Padilla over to Torquemada Gonazlea read (coutresy of Laura Rosen at the War and Piece blog):
For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.
In other words, the Bush administration is losing its credibility before this court. Let's see how The Dashing John Roberts rules on this one.
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"[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.' Alexander Hamilton, Federalist No. 84, August, 1788
