Appeals Court Refuses to Transfer Padilla

Associated Press ^ | December 21, 2005 | Toni Locy

[AntiGuv]

WASHINGTON - In a sharp rebuke, a federal appeals court denied Wednesday a Bush administration request to transfer terrorism suspect Jose Padilla from military to civilian law enforcement custody.

The three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals also refused the administration's request to vacate a September ruling that gave President Bush wide authority to detain "enemy combatants" indefinitely without charges on U.S. soil.

The decision, written by Judge Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month.

Luttig said the administration has risked its "credibility before the courts" by appearing to use the indictment of Padilla to thwart an appeal of the appeals court's decision that gave the president wide berth in holding enemy combatants.

Padilla, a former Chicago gang member, was arrested in 2002 at Chicago's O'Hare Airport as he returned to the United States from Afghanistan. Justice and Defense Department officials alleged Padilla had come home to carry out an al-Qaida backed plot to blow up apartment buildings in New York, Washington or Florida.

[mrsmith]

Marshall from the Burr trial:

""To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.... It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." "

"Levying war" = "[assembling] for the purpose of effecting by force a treasonable purpose".

' Doing other things "for the purpose of effecting by force a treasonable purpose" is what I meant. The "treasonable purpose" doesn't have to be carried through. Though I've seen it expressed by Burke or one of those guys more clearly than by Marshall- or me obviously.

[Dead Dog]

I'm not sure if I don't agree with him. On the other hand, I like the idea of habeas corpus. ie, if you wage war on the US, you do not have constitutional rights, you have rights under UCMJ like all of our service men and military enemies....until the civil courts find otherwise.

This gives the the executive the power to interrogate without disclosing intel, but the ability to pull the innocent out of harms way.

screw Padilla.

[Sandy]

So I was reading him completely backwards? Gotta work on my Early English. Always gives me trouble. LOL.

Well hell then, let's charge Padilla with adhering to the enemy AND levying war. That'll work. :-)

[muawiyah]

Bunch of Freepers were cheering for Luttig ~ supposed to be very pro-American and a great Conservative.

Looks like he was just another Fifth Columnist, and far from being any kind of Conservative patriot.

[JCEccles]

If the administration concludes that there are at least five SCOTUS justices primed to reverse the 4th Circuit and gut the administration's discretion on how it deals with captured enemy combatants, the administration is unlikely to want the question to go to SCOTUS right now. Every day that result can be delayed is one more day the administration has to deal with captured enemy combatants freely and flexibly.

Liberals want the matter to go the Supreme Court immediately so they can "stick it" to President Bush while they still have a sympathetic majority on the SCOTUS willing to do their bidding.

[Agrarian]

"The administration can argue anyway they want, they can do handstands, because this case shouldn't be in the courts in the first place. And that's what Luttig should be bright enough to see."

If that's the case, then the administration should have made the case from the beginning that the case shouldn't have been in the courts in the first place. The administration didn't make that argument, so Luttig could hardly have agreed with them, could he?

And that is something that the administration should have had the balls to do, if they really believed it.

It has nothing to do with Luttig being bright or dull.

What you're basically saying is that as long as it is called "war", the executive can do anything it wants to with American citizens without having to resort to the courts. I'd love to see the administration (or you, for that matter) make *that* case. There's a reason that it hasn't.

I shudder to think of how Clinton would have used that excuse (and how she probably will, given the chance...)

[lugsoul]

Oh, I believe he would do such a thing. I just used to live in a country where conservatives believed that you make the government prove that a citizen actually did something before you kill him for it.

It ain't like they ain't already grabbed a few 'terrorists' that turned out not to be.

[Wolfstar]

This is quite possibly the most inchorent article by the AP I have ever read.

I agree. It left me wondering if our new AG is weak and maybe a problem. The article almost makes it seem as though AG Gonzalez is trying to reverse what John Ashcroft did as AG. If so, I would be truly disappointed.

[Wolfstar]

Looks like Luttig is not too happy with Bush for being overlooked for SCOTUS.

I thought the same thing, but that's only because, as a non-lawyer, I don't understand what's going on here.

[NJ_gent]

"so they invented all of this stuff? the trips to Pakistan, the intercepts, the intelligence of the meetings Padilla had with AQ? they just walked into OHare airport one night and picked up some innocent dude at the baggage carousel?"

Of course, because the government never makes mistakes, the FBI never overreacts, and our intelligence communities provide flawless results every time...

[NJ_gent]

"Scalia v Thomas. Can't wait to see how this turns out."

Judging from previous results, Scalia will be beating government lawyers unconscious with thick, heavy law books while Thomas quietly asks the President to pen his decision for him.

It pains me greatly to have to say that, as I normally enjoy Thomas' writings immensely. However, when it comes to this issue, it seems Thomas is more than willing to trade freedom and whatever else is required for the promise of security.

[NJ_gent]

"You know, if Padilla had not been a gang member, I might give a damn. Fry him."

I can't seem to find the part of the US Constitution which says that it doesn't apply to gang members. Could you please show me where that part is?

[NJ_gent]

"if Osama Bin Laden landed on a plane at OHare airport tomorrow night, would you give him a civilian trial? what would you do with him?"

Osama bin Laden is not a United States citizen. Hang him, shoot him, launch him into orbit; it's all the same to me. United States citizens have special and undeniable rights as such. When you deny those rights to one, you deny those rights to all. If Padilla can be disappeared, so can you or I.

I would ask those who support the executive on this issue:

If Hillary Clinton gets elected President and has Rush Limbaugh, Michael Savage, and Jim Robinson thrown in military brigs as enemy combatants, will you defend her right to do so without question or interference from the courts?

[NJ_gent]

"yes, the key evidence against Padilla in the dirty bomb plot most likely does come from AQ people held in communicado by the US"

The three key witnesses against Jose Padilla as presented by the government thus far include:

An Al Qaeda terrorist who has consistently fed misinformation to his interrogators, and whose interrogators have openly stated that he "is toying with us".

An individual who later recanted his entire statement.

A heavy drug user who now resides in a mental institution.

[NJ_gent]

As harsh as Scalia was toward the government in the Hamdi case (the case of an American caught red-handed on a foreign battlefield fighting against American troops), I don't think the President wants so much as a glimpse of his reaction to the Padilla case.

Scalia's going to have the government lawyers shell-shocked and in tears when he's done with them.

[NJ_gent]

"actually, this is exactly why Lincoln suspended Habeas during the civil war."

Ruled illegal in Ex Parte Milligan (1866). Didn't I already point this out to you on another thread? Or am I thinking of someone else?

[NJ_gent]

"I agree with thomas here"

I find Thomas' position here to be disturbing. Thomas seems to think that the only correct reaction to any government action in time of war is to quietly thank the benevolent government for taking that action, as it is inherently in the best interests of everyone. While Thomas is usually one to write some of the most object yet eloquent decisions you're likely to read coming from the SCOTUS, his writings on this topic tell me he's scared out of his mind of terrorists, and that he's running on emotion and fear when looking at these sorts of cases.

I find Scalia to be refreshingly courageous and originalist in his writings on this topic.

[NJ_gent]

"What did Bush back down on?"

Holding Padilla indefinitely in a military brig.

[NJ_gent]

"our criminal justice system is basically designed to deal with crime only after it has occurred"

Really? Conspiracy to commit murder requires that a violent action take place before arrests can be made?

[NJ_gent]

"when two planes flew into the world trade center."

If that's all it takes for the people of this country to abandon the US Constitution, then we don't deserve the more perfect union it was intended to create. If we've become a nation of cowards who cower at the first sign of danger, then 'Live Free or Die' has lost all meaning.

Happily, I do not believe that is the case. I strongly believe in the sentiment behind 'Live Free or Die', and I pity those who do not. It was that sentiment that brought victory to a group of lawyers, doctors, and farmers over the most powerful military the world had ever seen, twice, at the birth of this nation.