Saturday, December 24, 2005

Strange Days

The legal side of the GwoT took a bizarre turn this week in the Jose Padilla case. The DoJ had been attempting to move Padilla and his case to the criminal courts, as demanded by the ACLU and their ilk, but the Appeals Court blocked that. The MSM stories fit the facts and comment smoothly into the Yet Another Defeat for Bush paradigm, but there is more to it than that.
OpinionJournal: Fortunately, in the Padilla case, an appeals court is now forcing the Administration to show the courage of its own convictions. In an extraordinary ruling issued Wednesday, a unanimous three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia, rejected the Department of Justice's request to vacate its earlier ruling, which said that the President "unquestionably" has the right to detain U.S. citizens who happen to be enemy combatants--a right the Administration has said repeatedly is indispensable to fighting this war.
Indeed, the opinion, written by Judge Michael Luttig, was a stinging rebuke of the DoJ move. Luttig was frequently mentioned as a possible SCOTUS appointment, and he's nobody's moonbat. So like the Harriet Miers nomination, this "defeat" actually forces the adminstration to stand and fight for its principles. Ultimately, the "defeat" of Miers as a SCOTUS nominee led to the better outcome of Judge Alito as a nomine and, we're predicting, an excellent Justice.

The issue is whether American citizens who are enemy combatants can be designated as such by the president, detained and treated outside the normal criminal justice system. As the Opinion Journal article says:
In its 2004 Hamdi decision, the Supreme Court upheld the authority of the President to detain enemy combatants, including U.S. citizens. The difference between Hamdi and Padilla is that the American in the former case was captured on a battlefield in Afghanistan and the citizen in the latter was picked up in the U.S. Given the nature of modern technology and terrorist strategy, where the U.S. homeland is a major target of attack, the enemy's location is an illusory distinction.
Indeed, in a war against terrorists the US homeland is as much a battlefield as is Afghanistan or Iraq or... The fact is the Administration won on the merits in the previous cases. Now Padilla will almost certainly be heard by the SCOTUS. The Bush DoJ will have to make its case there, but it's very likely to win. President Bush could use some more "defeats" like the Appeals verdict.

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