Is it just me, or is the primary purpose of Bush's Justice Department to find ways to sidestep the law, oversight, and review? The Department has expended a substantial amount of effort drafting memos that claim that certain laws can be interpreted to mean the exact opposite of their intent.
The New York Times reports that the Supreme Court has ordered that Jose Padilla, the Dirty Bomber, be transferred from the military brig where he has been held for 3 years to civilian custody. The Court's decision overrules a Federal Appeals Court decision from December 21st. Padilla has objected to being transferred because it might derail his appeal, soon to come before the Supreme Court, against the Federal Court ruling which allows the Executive to label him an Enemy Combatant and detain him indefinitely.
The court's order means that Mr. Padilla will be held in a federal prison in Miami rather than a Navy brig in Charleston, S.C., while he waits to learn whether the justices will take up his appeal of a decision that upheld, in sweeping terms, the government's authority to keep citizens it designates enemy combatants in open-ended military confinement.
The Bush Administration relies heavily on its dubious right to lock people up forever without charging them. For much the same reason that Bush decided to sidestep FISA, due process and habeas corpus are just a bit too inconvenient for this administration. Faced with a Supreme Court review of the Enemy Combatant issue in the form of a Padilla appeal, Bush and the Justice Department decided to "intentionally [moot]" the appeal by charging Padilla in civilian court. If he is no longer in the brig, he can't appeal his detention there.
Not only will Padilla's new status affect the strength of his appeal (if it is even heard now), but if Padilla is acquitted in civilian court then there is no assurance that he will not be thrown back into the brig. After all, he is still an Enemy Combatant.
The best thing would be to allow the Padilla appeal to run its course, and then proceed with his civilian charges. This was the opinion of the now overturned Federal Appeals Court:
The United States Court of Appeals for the Fourth Circuit, which includes South Carolina and which had earlier issued the decision upholding Mr. Padilla's military detention, refused to authorize the transfer from the brig, where he has been held for more than three years. It issued an opinion on Dec. 21 that suggested in stinging terms that the administration was now manipulating the federal court system, with "intentional mooting," in order to avoid Supreme Court review of the case.
In his opinion for the appeals court, Judge J. Michael Luttig said that while there might be valid reasons for the administration's request for an "eleventh-hour transfer" of Mr. Padilla, "any legitimate reasons are not evident, and the government has not offered explanation." He continued: "On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course."
Luttig, who was on the shortlist for a SCOTUS nod, is clear in his charge: the Administration is tampering with the system to avoid a review of a controversial policy. It's another case of the Justice Department relying on loopholes and procedure over solid legal policy. I am disappointed that the Supreme Court was lured out of its holiday vacation to issue a controversial decision in such an unsatisfactory and unexplained fashion. I suppose when you vacation in the administration's pocket, these things should be expected.
Think it's important to stop Alito? Yeah, me too.
Cross-posted at The Baltimore Group