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Cross-posted from The 10,000 Things

UPDATE: Firedoglake and SCOTUSblog have more.

An article today in the New York Times, "Padilla Lawyers Urge Supreme Court to Block Transfer," shows the Bush administration on the run before the U.S. Fourth Circuit Appeal Court and the Supreme Court. A preceding article, "Supreme Court Is Asked to Rule on Terror Trial," provides more information on the pending status of this case.

Jose Padilla, an American Citizen, incarcerated by Bush's government since May 8, 2002, was declared an "enemy combatant" in June 2002. This dubious extra-legal status was created by the Bush administration with claims of sole discretionary authority of the President outside of American law, international law, the Geneva Conventions, and the clear legal guidelines set forth in the Constitution (see Article III, and the 4th, 5th, 6th, and 8th amendments.

An excellent compilation of the Padilla case (Bush administration v. All rights of all American Citizens) can be found at Human Rights First.

Key points are:

  1. On December 18, 2003, the U.S. Court of Appeals for the Second Circuit held that the executive branch does not have the constitutional or statutory authority to indefinitely detain U.S. citizens seized on American soil.

  2. Rather than release Padilla, the government appealed the case to the Supreme Court.

  3. On June 28, 2004, the Supreme Court shirked answering the question of Presidential authority by ruling on narrow technical grounds that the case of Jose Padilla should be heard in a federal court in South Carolina, rather than by a federal court in New York.

  4. During the same month, the Supreme Court also ruled in Hamdi v. Rumsfeld that a U.S. citizen captured in Afghanistan and labeled an "enemy combatant" could not be held indefinitely at a U.S. military prison without the assistance of a lawyer, and without an opportunity to contest the allegations against him before a neutral arbiter.

  5. In February 2005, the federal district court in South Carolina held that the Government could not hold Padilla indefinitely without access to a court, and must charge or release him.

  6. But in September 2005 the U.S. Court of Appeals for the Fourth Circuit overturned the district court, ruling that Congress had authorized his detention.

  7. On November 22, 2005, after holding Padilla for more than three years without due process, the federal government indicted him on charges of conspiring to kidnap, murder, and injure people abroad. No charges were made relating to terrorist plots within the United States.

The Times article of Dec. 29, states:

"The administration, in declaring him an enemy combatant and jailing him in a military brig without access to a lawyer, initially accused him of plotting with Al Qaeda to detonate a radiological "dirty bomb" on American streets and plotting other attacks within the United States.

But in bringing criminal charges for the first time against Mr. Padilla last month, the administration reversed course and accused him of working to support violent jihad causes in Afghanistan and elsewhere overseas from 1993 through 2001. The criminal charges make no mention of the dirty-bomb plot or other American attacks."

The Times reporting on the recent ruling of the Fourth Circuit Court of Appeals:

"In last week's ruling, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., refused to allow Mr. Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terrorist attacks abroad.

The appeals court said that the Bush administration, in charging Mr. Padilla in criminal court in November after jailing him for more than three and a half years as an enemy combatant without charges, gave the appearance of trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration's credibility in the courts."

There are reasons why we have rules and procedures in our legal system. Following these rules and procedure guarantees the right to a fair trial so that innocent people are not railroaded into jail and guilty people aren't set free by the illegal actions of the government and prosecutors.

The Bush administration has almost guaranteed that Jose Padilla will go free due to their circumvention of the rules, the law, and the Constitution. They have boxed themselves into a corner. It seems likely at this point that the courts will rule that the President does not have the power to designate American citizens as enemy combatants (see the lists of organizations across the political spectrum submitting Amicus briefs in support of Padilla at the Human Rights First website).

In an attempt to keep the Supreme Court from ruling on this issue they want to move Padilla to the civilian court system. Should this happen then it seems to me that his lawyers will immediately move for dismissal of the case on the grounds that his 6th amendment right to a speedy trial and 8th amendment right to not suffer cruel or unusual punishment (3 years in a military brig without even being charged) have been violated.

If indeed Jose Padilla joined with al Queda and took action against the United States then The Constitution provides for the proper course of action regarding citizens that take action against the United States. Article III, section 3 states:

"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

The Bush administrations power grab has endangered the nation. If Jose Padilla did in fact join with Al Qaeda then the administration has completely bungled his case. Jose Padilla should go free. This administration is rendered incompetent by their own hubris and attempts at absolute power.

The good news is that this case is showing the strength of our democracy. Slowly perhaps, but it is showing none the less. The Appeals Court and likely soon the Supreme Court will show that it is The Constitution of the United States of America that is the law of the land and not George W. Bush and Dick Cheney.

Originally posted to Andrew C White on Sat Dec 31, 2005 at 11:08 AM PST.

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