Look Who Suddenly Believes in Supreme Court Review

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.