Strange Twists in the Padilla Case

By Mike Whitney

12/29/05 "
ICH" -- -- Can the president of the United States imprison an American citizen for 3 and a half years as an enemy combatant and then in a flash change his mind and charge him as a criminal?

Isn’t that double jeopardy?

And, doesn’t it imply that Bush has created a parallel justice system where he’s free to determine guilt or innocence according to his own discretion?

Two weeks ago the Bush legal team completely reversed its position in the Jose Padilla, “dirty bomber” case; dropping its claim that Padilla be held as an enemy combatant and, instead, charging him with 3 counts of conspiracy to murder US nationals, conspiracy to provide material support to terrorists and providing material support to terrorists in an 11 count indictment.

The case was just days away from going to the Supreme Court when Attorney General Alberto Gonzales announced that it would abandon its nearly 4 year struggle to establish the president’s “inherent right” to declare an American citizen an enemy combatant, thereby stripping him of all his constitutional rights.


Why would Bush fight for so long to have the court vindicate his claims of absolute authority only to ditch that effort in the last few hours before it hit the high court? After all, Bush had already prevailed in his case before the 4th Circuit Court. The three judge panel unanimously ruled that the president was empowered by the Congress to use “all necessary and appropriate force” in fighting the war on terror. The judges concluded that these extraordinary powers included the indefinite detention of citizens who the president chose to label as enemy combatants, a moniker that has no legal precedent.

Okay, so Bush won a total victory. Now, here’s the tricky part: after winning this ground-breaking, constitutional-shattering case, Bush asked the 4th Circuit to vacate the ruling so the Bush prosecutors could do a 180 degree turnabout and charge Padilla as a criminal.


Was the Bush team tipped off by the Supreme Court that the ruling would not survive their scrutiny?

The 4th Circuit, trying to salvage its dwindling credibility, has taken the unprecedented step of refusing to vacate their ruling to further accommodate the president. In an unexpected rebuff, the 3 judge panel issued a terse statement that the Bush administration’s attempts to change the ruling eroded public confidence in the war on terror and made it appear like Jose Padilla had been mistakenly incarcerated for 4 years. They also said that the case is of such “national importance” that it should go to the Supreme Court. Clearly, the issues of “enemy combatants” and the limitations of presidential power need to be resolved in the high court.


Not nearly as confusing as it would become on Wednesday of this week. That’s when the Justice Dept issued a statement that the 4th Court “infringed on President Bush’s authority to run the war on terror when it refused to let prosecutor’s take custody of ‘enemy combatant’ Jose Padilla…and urged the US Supreme Court to intervene”.


Once again, the 4th Circuit RULED IN BUSH’S FAVOR; granting him the unconstitutional power to rescind the Bill of Rights and topple 200 years of legal precedent. They breezily overturned the fundamental principles of habeas corpus, due process and the presumption of innocence, simply to accommodate Bush. Now, they are being lambasted by the Justice Dept. for defending their credibility and sticking by that ruling?!?

Incredible! This is where tragedy becomes farce.

A spokesman for the Justice Dept said, “There is nothing remotely sinister about the government’s effort to pursue criminal charges that minimize evidentiary complications. Theirs is no basis for questioning the good faith of the government in moving forward with the indictment.”

Is he serious? The DOJ is asking to vacate a ruling that it just won after a grueling 4 year struggle and its spokesman says that there is “nothing sinister” about that?

Whatever the Bush strategy is at this point it’s clear that the appearance of a just process means nothing to the occupants of 1600 Pennsylvania Ave. For all appearances, the American judicial system is merely a nuisance that they treat with complete disdain.

The Bush legal team will probably try to limit the involvement of the Supreme Court by having them rule on (what the Justice Dept calls) the “unwarranted attack on the exercise of Executive discretion”. If they are successful, Bush will have pulled off his judicial-coup; winning the tacit endorsement of the highest court in the land for the supreme authority of the president.


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