The 4th Circuit Court of Appeals, which has been Bush's judicial venue of choice for some some, is now breaking ranks by challenging Bush's unchecked power.
This is encouraging news.
But now Bush is running, kicking and screaming, to the Supreme Court, in an effort to have them bless his perceived right to unbridled power.
From Thursday's Christian Science Monitor:
Hoping to overturn a federal appeals court ruling last week, the Bush administration Wednesday asked the Supreme Court to allow the immediate transfer of accused terrorist Jose Padilla from a military prison to civilian custody. The New York Times reports that in its brief to the high court, the Justice Department called the appeals court ruling that blocked the transfer an "unwarranted attack" on presidential discretion.
The 4th US Circuit Court of appeals in Richmond said that, by seeking to transfer Mr. Padilla to civilian custody after holding him for more than three and a half years without charge as an enemy combatant, the Bush administration appeared to be trying to "manipulate" the system to prevent the higher court from hearing the issue. The opinion, written by Judge Michael Luttig, a conservative jurist who had recently been considered a possible Supreme Court nominee, was considered a setback for the Bush administration.
The Washington Post reports that the dispute between the White House and the 4th Circuit court is unusual because the Richmond court had been the White House's "venue of choice" for high-profile terrorist cases after 9/11.
The appeals court had earlier this year upheld the government's right to hold Padilla as an enemy combatant. Then the government announced criminal charges against Padilla and four others for being part of a "violent terrorism conspiracy," without mentioning any of the reasons he had been held as an enemy combatant (such as seeking to build a dirty bomb). When the government asked to transfer Padilla from military prison to a civilian jail, the appeals court blocked the request.
The Los Angeles Times reports that the government's petition does more than ask for permission to transfer Padilla to civilian custody – some legal analysts say it "could set precedent over an array of legal disagreements between the White House and civil liberties advocates, particularly over the administration's aggressive use of executive power without seeking prior approval from the courts or Congress."
The Post reports that the government's petition came one day after Padilla's lawyers asked the Supreme Court to use the case to decide how much unchecked power the president should have when the nation is at war. Lawyers Donna Newman and Andrew Patel said the high court's ruling was crucial because of the amorphous and drawn-out nature of the war on terrorism.