Rejection of Bush's ploy on Padilla shows carte blanche of AUMF in doubt

[bigtree]

Court rejects Bush request

In what amounts to a sharp rebuke of the Bush administration, a U.S. appeals court has rejected a request to transfer Jose Padilla, the accused terrorist who has been held for three years as an "enemy combatant," from military custody to face charges in a civilian court, the International Herald Tribune reported from Washington.

Last month, the panel issued a brief order suggesting it might withdraw an earlier opinion that gave Bush sweeping powers to detain Padilla, an American, indefinitely without trial. But the administration then shifted course and said it would no longer hold Padilla as an enemy combatant but try him on criminal charges in a civilian court.

On Wednesday, the appeals panel said that the Justice Department's effort to transfer Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case.

http://www.iht.com/articles/2005/12/22/news/policy.php



The Padilla case differs from the one cited by Attorney General Gonzales as he defended Bush's wiretapping without a warrant in that Hamdi, the subject of the Supreme Court's reasoning in allowing Bush detention authority, was captured on the battlefield in Afghanistan. But the fact that both Padilla and Hamdi are Americans underscores the refusal of Bush to afford these U.S. citizens the habeas corpus rights that should be inherent in their citizenship.

Gonzales, in his defense of Bush's warrantless surveillance over the past few days, has cited the Authorization for Use of Military Force as the basis for Bush's authority to bypass the law. Gonzales went on to suggest that the AUMF give Bush the power to do just about anything, lawful or not, so long as he insists that the target or subject of his action was a threat related to his 'war on terror'.

If this panel does eventually get to decide on the continued detention, and goes ahead as they have indicated they would and release Padilla, it will punch a big hole in Bush's monarchy. Not that Bush wouldn't appeal and advantage himself of a friendly court, but I think this panel is a loose thread in the garment that Gonzales has dressed Bush in.

[BrotherBuzz]

1. Fruit of the poisonous tree

The original allegation that Padilla was part of a bomb plot was not mentioned in a Justice Department indictment on Nov. 22, which said only that Padilla was part of a terror cell that supported violent acts overseas. Why is this? Me thinks this administration and especially Gonzales is burning the midnight oil and wishing this whole thing would just go away because they can no longer hide Padilla in suspended animation indefinitely.


fruit of the poisonous tree

n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it. For example, as part of a coerced admission made without giving a prime suspect the so-called "Miranda warnings" (statement of rights, including the right to remain silent and what he/she says will be used against them), the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property.

[bigtree]

2. they probably also didn't have enough evidence to charge him

much less convict him.Otherwise he'd be their trophy by now instead of an anchor.

[BrotherBuzz]

3. The national hysteria of that time required boogymen to demonize

I often wonder about John Walker Lindh's case, too, and how the outcome could have been different with the tempering of time. Can you say railroaded?

[bigtree]

4. Terror case challenges White House strategy

Terror case challenges White House strategy
An appeals court refused the government's request to have Jose Padilla transferred to Florida for a criminal trial.

"Suddenly, terror suspect Jose Padilla seems a lot more dangerous to the Bush administration.

It has nothing to do with his suspected involvement in Al Qaeda bomb plots, analysts say. Rather, the administration worries that the US Supreme Court might agree to hear Mr. Padilla's case and decide one of the most pressing constitutional issues in the war on terrorism. And by all appearances, government lawyers think they might lose.

>>>>It is not a minor matter. The claim of broad presidential power is a cornerstone of the administration's effort to restore what it views as the proper level of executive authority after decades of erosion following the Watergate scandal. Such robust, independent presidential power is said to be critical to safeguarding the country from a repeat of the 9/11 terror attacks.

>>>>The administration's actions create "an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court," writes Judge J. Michael Luttig in a 13-page order released on Wednesday.

"We believe that the issue is of sufficient national importance as to warrant consideration by the Supreme Court," Judge Luttig writes.

(The panel scolded Bush for manipulating them.)

"While there could be an objective that could command such a price as all this, it is difficult to imagine what that objective might be."

http://www.csmonitor.com/2005/1223/p02s01-uspo.html


The Supreme Court has already given deference to Bush, deciding that he has the right to detain Americans under the authority Congress gave him in the Authorization to Use Military Force for the 'war on terror'. Attorney General Gonzales cited the Supreme Court decision as he defended Bush's warrantless spying in claiming that the AUMF gave Bush the power to do anything he wants, legal or not, so long as he says his target is related to the terror threat.

What the panel is demonstrating is that Bush has maybe pushed the AUMF argument too far. If the panel acts and removes the ruling that allows Bush to hold Padilla, as they were set to before Bush tried to sidestep them in civilian court, it would represent not only a rebuke to their handling of Padilla. It would be a direct challenge to the broad interpretation of the SC ruling that Gonzales and Bush are relying on to claim unlimited power in their campaign against 'terror'.