Another ironic victory in Padilla case

More ironically positive developments in the JosĂ© Padilla case. First, his lawyers demanded that the Justice Department charge him with a crime, rather than hold him in military custody indefinitely as an “enemy combatant.” Now that the Justice Department has done so, the 4th Circuit is refusing to approve his transfer to civilian custody—which could force the “enemy combatant” designation to go to the Supreme Court, something the Administration evidently sough to avoid. From the AP, Dec. 22:

A government request to transfer terrorism suspect Jose Padilla from military to civilian custody was rejected by an appeals court that said the administration’s shifting tactics in the case threatens its credibility with the courts.

The three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals also refused on Wednesday the administration’s request to vacate a September ruling that gave President Bush wide authority to detain “enemy combatants” indefinitely without charges on U.S. soil.

The decision, written by Judge J. Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month…

Luttig said the administration has risked its “credibility before the courts” by appearing to try to keep the Supreme Court from reviewing the extent of the president’s power to hold enemy combatants without charges…

Luttig said the Supreme Court must sort out Padilla’s fate, either by accepting or rejecting an appeal by his lawyers of the appellate court’s decision in September that the president has the authority to order his detention indefinitely.

See our last post on the Padilla case.