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[spy1]

http://www.cnn.com/2...tant/index.html

Order questions Bush administration credibility
From Phil Hirschkorn
CNN


Thursday, December 22, 2005; Posted: 12:37 a.m. EST (05:37 GMT)

"(CNN) -- In an order questioning the Bush administration's "credibility before the courts," a federal appeals court has rejected the government's application to transfer "enemy combatant" Jose Padilla from military to civilian custody.

The 4th U.S. Circuit Court of Appeals blocked the move of Padilla, 35, a U.S. citizen who has been detained for more than three years in U.S. military custody in a South Carolina naval brig, to Florida, where he now faces terrorism conspiracy charges.

The order, which leaves open the possibility of a Supreme Court review of the case, came just five days after Padilla's attorneys told the court in a brief the Bush administration has consistently "manipulated" courts to evade judicial review of its controversial handling of the case.

The government's actions have left "the impression that Padilla may have been held for these years, even if justifiably, by mistake," a three-judge panel of the court said in its 14-page decision issued Wednesday."

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I have no doubt whatsoever that it was the government's aim to avoid having the Supreme Court hear this case by sending Padilla on to a regular jail after - finally - formally charging him.

It's part of more widespread tactic being seen lately - to wit, seeming acceptance of court rulings while at the same time accomplishing the same results by other (or even the same) means.

For instance, look at all the wiretap orders that have been denied judges. The government - rather than appealing those decisions - simply lets those go and keeps handing out more and more wiretap requests (which makes one wonder how "vital to national security" those requests were to start with - or whether they were just fishing expeditions). At the same time, that tactic prevents higher courts from ever hearing the cases, and thus from being able to hand down any decision that would rule on the legality/illegality of the whole process (the government wanting to avoid an adverse ruling at all costs, of course).

Also, we've got a couple of "delayed rulings" waiting in the wings while the government works on their appeal to the adverse rulings concerning the use - indeed, even the Constitutionality - of both NSL's and their "gag" clauses. The government made sure that their "appeals" weren't ready before the 'patriot' act re-authorization vote this month - and they were especially adamant about having felony, 5-year prison sentence plus fines, punishments added to the 'patriot' act (Sections 116 and 117). (They also tried to have "administrative subpoena power" for F.B.I. agents added to the bill, but that was denied inclusion across-the-board - you need to remember that fact the next time the government tries to slide that in somewhere - and they will).

I look forward to having the Padilla case heard by the Supreme Court (although perhaps the government will hold off on its' appeal until they can get Alito installed).

In the meantime, I wish that the other judges would hand down their rulings and order them into effect to force a show-down on those issues, too.

You should, too - in these cases, it's not how many of us write our legislator's that matters - it's how the courts rule, whether they make those rulings stick - and whether they make those rulings well. Pete

[spy1]

Hamdi V Rumsfeld

http://www.law.corne...03-6696.ZO.html

Interesting comments by Justice O'Connor regarding this decision.

This Supreme Court decision is important for several reasons. Most obviously, it occurs after FISA became law in 1978, after 9/11, after the Authorization for the Use of Military Force (AUMF) was passed by the Congress in late September 2001 (Afghanistan), after the FISA Act was modified by the Patriot Act in 2002, and after the Iraq Resolution of 2002. In other words, all relevant laws were on the book when this decision was delivered. (Some of the earlier Supreme Court decisions were obviated by one or more of the laws and resolutions itemized above.)

Justice Sandra Day O'Connor, writing for the majority in this decision of the Supreme Court, makes several statements relevant to the current issue:

"Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile").
. . . .
In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . ."

Is it any wonder that the Administration tried to slide Padilla back in to the regular court system and finally charge him after three years' worth of illegal detention - when the Court was getting ready to hear and rule on the legality of that?

It's certainly no wonder that the Court has blocked them from doing so to enable the issue to be dealt with, that's for sure. Pete