Look Who Suddenly Believes in Supreme Court Review

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The Bush administration has asked the Supreme Court to override the 4th Circuit decision blocking the transfer of terrrorism suspect Jose Padilla from military to civilian custody, calling it an "unwarranted attack" on presidential authority. Even if the Court rules in the president's favor, that does not necessarily mean he will avoid further review of his detention powers.

There were two parts to the 4th Circuit's opinion: 1) its denial of permission to transfer Padilla and 2) its refusal to withdraw its decision upholding the president's authority to detain Padilla as an "enemy combatant." One member of the three-judge panel, William Traxler, dissented from the first part, concluding that Supreme Court Rule 36, which governs transfers of prisoners in habeas corpus cases, does not apply in this situation. (As the other two judges, J. Michael Luttig and M. Blane Michael, conceded, "There is no articulated purpose for this rule, the rule does not specify a standard upon which a requested transfer should be authorized or denied, and it is unclear to us what the applicable standard ought to be or whether the rule even applies in a circumstance such as this.") But Traxler joined his colleagues in objecting to what looks like a deliberate attempt by the government to render the 4th Circuit's decision moot and thereby avoid a Supreme Court decision that might put further limits on the president's detention powers.

The Supreme Court could decide to allow Padilla's transfer and still take up the question of whether his military detention was legitimate. Since the president claims the power to send Padilla back to the brig whenever he chooses (should Padilla be acquitted after a criminal trial, for example), the issue would still be relevant.

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  1. The Bush administration has asked the Supreme Court to override the 4th Circuit decision blocking the transfer of terrrorism suspect Jose Padilla from military to civilian custody, calling it an “unwarranted attack” on presidential authority.

    As if the Bush administration thinks there’s such a thing as a warranted attack on presidential authority.

  2. Is anyone else worried that Bush might have to face SC review, and then win?

  3. Fall Dog,
    After Raich and Kelo, few things worry me more than giving the SCOTUS the opportunity to sanction the trampling of my rights.

  4. Is anyone else worried that Bush might have to face SC review, and then win?

    They won in Hamdi, query whether Padilla is distinguishable (hopefully it is, though if Alito gets on the Court to decide the issue, watch out).

    Oh, and one more thing: Freeeeedoooooo!!!

  5. Fredo? Is that some kind of Godfather reference, Ugh?

  6. RC Dean – no, just a testament to my impatience with proofreading.

  7. I know it was you, ugh. You broke my heart.

  8. Excellent GF II reference, PL! I’ve just finished the DVD. What a great movie.

  9. You’re nothing to me now. You’re not a commenter, you’re not a poster.

  10. Don’t tell me – Nothing happens to Ugh while Mama is still alive, right?

  11. peachy: thanks. I needed a laugh.

  12. The point is, as long as this stays in the Judiciary Branch, we get to know whether Padilla won or lost and why. Whatever the outcome for Taliban-sider Padilla in this case, your fears about SCOTUS review are misplaced, because even if they publically trample Padilla’s rights in this case at least we get to know about it!

    Compare that to the longterm prospects for detainees who don’t get to bring a case.

  13. As TLD points out, this is largely about process not results. I fully prepared to stipulate that both Hamdi and Padilla (I’m struggling with the whole new pronunciation thing, BTW) are bad guys who should go away for a very long time. That being said, let’s prove they are in fact bad guys before skipping to the going away bit.

    All too often in ‘security’ matters, this administration wants to eat its chocolate cake before finishing their veggies. And if you spoil your apettite, the terrorists win.

    (?)

  14. Is anyone else worried that Bush might have to face SC review, and then win?

    Actually, what I’m afraid of is Bush facing SC review, losing, and then ignoring the verdict. It’s happened before, I know, and it won’t be the end of the world; but it’s still a gigantic step in the wrong direction.

  15. I think we all should hope for the best step by him.

  16. RC Dean, one of my favorite lines in the Godfather movies isn’t one you hear very much, but I always smirk when I hear it:

    Fredo Corleone: Uno… por favor…
    [to Michael]
    Fredo Corleone: How do you say “banana daiquiri”?
    Michael Corleone: “Banana daiquiri.”

    As an aside, I think more Godfather quotes sneak into business conversations than quotes from any other movie. When I was working in house, the legal department’s philosophy was to, as a general rule, work out all of our purely legal disputes before discussing them with the executives. How did we state that philosophy? “Never tell anybody outside the family what you’re thinking. . . .” Oddly enough, Kelly’s Heroes came in second in our department with the oft-quoted line, “Always with the negative waves, Moriarty, always with the negative waves”.

  17. grylliade, while there’s certainly precedent for a president (is that a song?) ignoring the Supreme Court, I don’t think that would fly in today’s environment. Pissing off the other two branches to such a large degree is an excellent way to get impeached, even when your party controls all three branches. That’s especially true if “The People” get up in arms over the whole issue, which could happen if Bush pushes things to the point where we have a Constitutional crisis. As I’ve said in other threads, the executive will probably back down from any of these, ahem, novel interpretations of the law that seem to push Congress, the Supremes, or the public too far. Also, anything too crazy from Bush (contain yourself, peanut gallery–I refer to actual defiance of the Court where there’s no legal basis at all for doing so) will guarantee a 2006 disaster for the GOP.

  18. As an aside, I think more Godfather quotes sneak into business conversations than quotes from any other movie.

    My favorite is “We’re all reasonable men here,” taken from the scene where the five families are talking about how to get into the drug business. I can’t tell you how many times I’ve used that line.

  19. R C Dean: “Some day, and that day may never come, I’ll call upon you to do a service for me. But until that day–accept this justice as a gift on my daughter’s wedding day.”

  20. I just have to say that the Bush administration’s complaints concerning an “unwarranted attack” on their power is as delicious an irony as any I have ever seen in print. After all, not bothering with warrants caused most of the problem in the first place, no?

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