Damn activist judges

The 4th Circuit Court won't let Gonzales transfer Jose Padilla from the military brig to a federal prison. Take that! The NYT article, while complex, is worth reading.

A federal appeals court threw up a surprise obstacle on Wednesday to the Bush administration's plan to transfer Jose Padilla from military custody to face terrorism charges in a civilian court. A three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a brief order suggesting it might withdraw an earlier opinion that gave President Bush sweeping powers to detain Mr. Padilla, an American, indefinitely without trial.

Despite being armed with that earlier court ruling, the administration shifted course last week and said it would no longer hold Mr. Padilla as an enemy combatant but instead try him on criminal charges in a federal court. To do so, the Justice Department sought permission from the appeals court to transfer Mr. Padilla, a former gang member from Chicago, from a Navy brig in South Carolina to the federal prison system.

To the apparent surprise of lawyers on both sides, the appeals court did not agree to give its permission. Instead, it issued an order requiring both the government and Mr. Padilla's lawyers to submit briefs on whether the court should withdraw its earlier ruling. The significance of the action was unclear, but some lawyers thought it signaled annoyance with the government. Eugene R. Fidell, a Washington lawyer who closely follows detainee issues, said, "It's hard to tell, but this appears to be a rebuff to the administration." Mr. Fidell said it was possible that the judges felt ill used in expending the court's institutional capital on issuing its Padilla ruling only to have the government decide to leave it unused.

The government initially asserted that Mr. Padilla was an operative of Al Qaeda who had planned to detonate a radioactive "dirty bomb" in some American city. In its indictment on Nov. 22, the Justice Department said only that he was part of a North American terrorist cell that supported violent acts overseas. The shift to the civilian courts was interpreted by many as a decision by the government to avoid risking a test in the Supreme Court of the Fourth Circuit's ruling.

In indicting Mr. Padilla, the Justice Department said it believed the issue of Mr. Bush's authority to detain him as an enemy combatant was moot. Prof. Judith Resnik of the Yale Law School said the issue was still alive because if Mr. Padilla was acquitted, the government could easily turn around and again declare him an enemy combatant.