The New York Times reports on the Jose Padilla case:

A federal appeals court delivered a sharp rebuke to the Bush administration Wednesday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges.

In denying the administration’s request, the three-judge panel unanimously issued a strongly worded opinion that said the Justice Department’s effort to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration’s behavior in the Padilla case could jeopardize its credibility before the courts in other terrorism cases.

What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who in September had provided the administration with a sweeping court victory, saying President Bush had the authority to detain Mr. Padilla, an American citizen, indefinitely without trial as an enemy combatant.

William Rehnquist died on September 3, 2005 and the Bush administration seriously considered replacing him with a member of the Fourth Circuit, J. Michael Luttig. It was in that context that the court ruled in the administration’s favor back in September. But on October 3rd, Bush passed over Luttig for a second time (the first being when he selected John Roberts to replace Sandra Day O’Connor), and selected Harriet Miers. One can only imagine the level of outrage and disappointment felt by Michael Luttig when his lifelong ambition to be appointed to the highest court in the land went up in smoke and a judicial midget was selected in his stead. And when the Harriet Miers’ nomination had to be withdrawn and Luttig received an unexpected third opportunity to be named to the Supreme Court and he was passed over again? I’m sure it did not sit well. Yesterday, he got some revenge.

…the judges were clearly angered when the administration suddenly shifted course on Nov. 22, saying it no longer needed that authority because it now wanted to try Mr. Padilla in a civilian court. The move came just days before the government was to file legal papers in Mr. Padilla’s appeal to the Supreme Court. The government said that as a result of the shift, the court no longer needed to take up the case. Many legal analysts speculated at the time that the administration’s sudden change in approach was an effort to avoid Supreme Court review of the Fourth Circuit ruling.

In the opinion on Wednesday, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government’s suggestion that it vacate the September decision upholding Mr. Padilla’s detention for more than three years in a military brig as an enemy combatant.

Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to the government’s requests because that would compound what was “at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court.”

Judge Luttig wrote that the timing of the government’s decision to switch Mr. Padilla from military custody to a civilian criminal trial, just as the Supreme Court was considering the issue of the president’s authority to detain him as an enemy combatant, had “given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court.”

When you aren’t bucking for a promotion it is a lot easier to tell truth to power. And Luttig, with nothing left to lose, sounds a bit like Michael Moore:

Although Judge Luttig was careful in his opinion to avoid flatly asserting that the government had misbehaved, his skepticism about its behavior was unmistakable. He used the word “appearance” several times in explaining why he believed the government’s approach in the Padilla case raised suspicions.

Judge Luttig said the government might not have fully considered the consequences of its approach, “not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation.”

He said the government “must surely understand” that it has left the impression that Mr. Padilla may have been held for more than three years by mistake.

To understand how weak the case against Jose Padilla is, it pays to go back to the time of his transfer from police to military custody and to see how quickly the press realized they were being fed a line of bull. Take a look at this piece from Time Magazine from June 14, 2002.

Padilla entered public life via an announcement from Moscow on Monday, by Attorney General John Ashcroft, that an al-Qaeda operative had been captured at Chicago’s O’Hare International Airport, en route to contaminate a U.S. city with a radiological bomb. Within minutes panicky cable news channels were running file footage of mushroom clouds. They then spent much of the next two days atoning via a more sober explanation of dirty-bomb scenarios — and why they’re not nearly as scary as they sound.

But as the (not quite radioactive) dust settled on Ashcroft’s dramatic announcement, some began asking not only why Mr. Padilla, a U.S. citizen, was being held in a Navy brig as an “enemy combatant,” but also why he was dominating America’s headlines — and its nightmares. Within hours of Ashcroft’s announcement, administration officials were pointing out that Padilla had no radioactive material or any other bomb-making equipment. Nor had he chosen a target, or formulated a plan. And while his connections with al-Qaeda operatives were never in doubt, he suddenly began to look a lot more like the accused shoe-bomber Richard Reid (i.e. another disaffected ex-con from the West desperate to get in with al-Qaeda) than like the sophisticated professionals who put together September 11.

Three and a half years later the case against Padilla looks even worse:

Mr. Padilla, a former Chicago gang member who converted to Islam and who, officials say, traveled to the Middle East and offered his services to terrorist organizations, was arrested at O’Hare International Airport on May 8, 2002. Government officials initially portrayed him as someone who was considering a plot to explode a radioactive “dirty bomb” in some American city and then to destroy gas lines to destroy public buildings.

In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan.

We might recall that 2002 was the year of the color-coded terrorism alert. That trend reached its apogee just prior to the war when Tom Ridge issued his famous DuctapeFatwa and told us to go buy duct tape and plastic sheeting.

Ridge indirectly appeared to blame Democrats for some of the criticism over the recommendations.

“Obviously, I think there’s been some political belittling of duct tape,” he said, referring to the suggestion Americans buy plastic sheeting and tape to seal a safe “internal room” in their homes from a biological or chemical attack.

“But the Centers for Disease Control and professionals will tell you that duct tape and a secure room and a couple of gallons of water to tide you over for a day or two is precisely what you might have to do in the event something occurs,” Ridge said.

Jose Padilla may have been a bad guy with bad intentions. Or he may have just been a pawn in a greater scheme to scare the living shit out of Americans and get us to support invading Iraq.

Tom Ridge revealed the truth about this campaign of fear-mongering through terror alerts not too long ago:

“More often than not we were the least inclined to raise it,” Ridge told reporters. “Sometimes we disagreed with the intelligence assessment. Sometimes we thought even if the intelligence was good, you don’t necessarily put the country on (alert). … There were times when some people were really aggressive about raising it, and we said, ‘For that?’

As time goes by more and more Republicans begin to sound like Michael Moore and Michael Moore begins to sound a lot more like a mainstream outraged American.

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