- The Washington Times - Sunday, January 1, 2006

On criminal justice and national security issues, the U.S. 4th Circuit Court of Appeals is widely considered the most government-friendly federal appeals court.

So when a 4th Circuit panel rebukes the Bush administration for its handling of an accused terrorist, in a decision written by a judge who was on the president’s Supreme Court short list, even the president’s most ardent supporters have to wonder what’s going on.

President Bush’s broad view of his powers and disregard for other branches of government have provoked a backlash well beyond the carping of partisan Democrats. Even a court ready to uphold the president’s authority to detain suspected terrorists as “enemy combatants” is unprepared for him to submit his actions to judicial review only when he feels like it.

The 4th Circuit case involves Jose Padilla, a U.S. citizen arrested at Chicago’s O’Hare International Airport in 2002. Declaring the arrest foiled a plan to detonate a radiological bomb in the United States, the government soon transferred Padilla to military custody, where he has remained since.

Last year, the Supreme Court ruled the Authorization for the Use of Military Force passed by Congress after the September 11, 2001, attacks allowed the president to detain another U.S. citizen, Yaser Esam Hamdi, captured in Afghanistan in 2001. But the court also said Hamdi had a right to contest his enemy combatant status before a “neutral decisionmaker,” which the administration avoided by his release.

By the time the 4th Circuit heard Padilla’s case in July 2005, the government had stopped talking about the much-publicized “dirty bomb” plot and instead accused him of planning to blow up apartment buildings by sabotaging their natural gas supplies. It was emphasizing that Padilla, like Hamdi, had sided with the Taliban in Afghanistan.

In a September decision, the 4th Circuit concluded Congress’ post-Sept. 11 resolution authorized the president to keep Padilla in military custody, assuming the allegations against him were true. But two months after, the Bush administration unveiled a criminal indictment of Padilla, asked the 4th Circuit for permission to transfer him to civilian custody and said the court ruling should be withdrawn as no longer necessary. Taken aback at the government’s reversal, the court said no.

In an opinion by J. Michael Luttig, the three judges who had upheld the president’s detention authority said they were disturbed by the appearance that the government was trying to avoid Supreme Court review. They also noted Padilla’s indictment, charging him with conspiring to support terrorism and commit violence abroad, “made no mention of the acts upon which the government purported to base its military detention of Padilla.”

Judge Luttig wrote that by keeping Padilla in a brig for 3 years without trial, then deciding to try him after all once a court approved the detention, the government “left the impression that Padilla may have been held for these years, even if justifiably, by mistake.” By pressing its claim the president has authority to indefinitely detain anyone he labels an enemy combatant and then seeming to back away from that claim, Judge Luttig said, the government created an impression “the principle in reliance upon which it has detained Padilla… can, in the end, yield to expediency with little or no cost to its conduct of the war against terror.”

Judge Luttig warned the administration’s actions may hurt “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.” If this episode results in greater judicial skepticism about assertions of executive power, perhaps we should be grateful the president overplayed his hand.

Jacob Sullum is a nationally syndicated columnist.

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