A Bump on the Way From Brig to Jail


The U.S. Court of Appeals for the 4th Circuit was happy to let the Bush administration lock up an American citizen and throw away the key based on nothing more than the president's determination that the prisoner was an "enemy combatant." But now that the government wants to transfer the guy back to civilian custody and give him a trial, the court is objecting. It's hard to tell exactly what's going on from the accounts in The New York Times and The Washington Times, but it sounds like the judges are pissed off that they went out on a limb to give the president unprecedented detention authority that he has decided not to use after all.

The 4th Circuit has asked the government and lawyers for accused terrorism supporter Jose Padilla to submit briefs on the question of whether the court should rescind its enemy combatant decision. The court suggests that perhaps it should reconsider its ruling "in light of the different facts that were alleged by the president to warrant Padilla's military detention…and the alleged facts on which Padilla has now been indicted." Perhaps I'm reading too much into that, but it seems as if the judges are having second thoughts about trusting the administration's assertions that Padilla planned to detonate a radiological bomb in a U.S. city and/or blow up apartment buildings by sabotaging their natural gas supplies–allegations that are conspicuously absent from his criminal indictment.

I'm not sure whether to hope that the 4th Circuit withdraws its ruling. If there's still a chance that the Supreme Cort will review it–a prospect that switching Padilla to civilian custody seems designed to avoid–it might be better for the decision to stand, so it can be definitively reversed. Critics of the administration's enemy combatant policies argue, plausibly enough, that the president's detention authority is still a live issue because Padilla could be sent back to the brig after being acquitted.