Dirty Tricks For a Dirty Bomber

Using the 9/11 attacks as a baseline, the Bush administration has had over four years to figure out how to incarcerate and try terrorists under a regime of laws and procedures -- many of them enacted after the attacks on New York and the Pentagon -- that give it extraordinary latitude.

For all of its chest thumping about successes in the War on Terror, the White House continues to stumble over and over and over – and over again – in dealing with people it has charged with being terrorists.

The sad truth is that there are hundreds of detainees at Guantanamo Bay, in navy brigs and secret prisons around the globe, but the administration has a mere handful of prosecutions to show for its bravado.

So it was only somewhat surprising when the U.S. Appeals Court for the Fourth Circuit in Richmond, Va., delivered a sharp rebuke to the administration yesterday in refusing to allow the transfer of Jose Padilla from military custody to civilian custody.

In denying the transfer, the three-judge panel stated, in so many words, that the Justice Department's effort to transfer Padilla stunk on ice. More specifically, they said it appeared that the government was trying to manipulate the court system to prevent the Supreme Court from having an opportunity to review the case.

The judges also warned, as have other judges in other terrorism cases, that the administration's extra-legal behavior could jeopardize its credibility before the courts.

Two key paragraphs from their unanimous ruling:

[The Justice Department] has left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror — an impression we would have thought the government likewise could ill afford to leave extant.

And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

You'll recall that Padilla is a former Chicago gang member who converted to Islam and was portrayed as the mastermind of a plot to explode a radioactive "dirty bomb" in an unidentified U.S. city when he was arrested with great fanfare in May 2002. You probably didn't know that that sensational charge was dropped, and he is now charged with fighting against American forces alongside Al Qaeda soldiers in Afghanistan -- a serious crime for an American citizen, if true, but a big comedown from the original rap.

The New York Times explained why the ruling was such strong stuff:

What made the action . . . 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 . . . indefinitely without trial as an enemy combatant.

But 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.

Given the appeals court's September decision, the latest ruling is less a victory for civil libertarians than a poke in the eye for an administration that has cynically changed legal arguments to suit its needs in the Padilla case and other terrorist prosecutions, including that of the so-called 20th 9/11 terrorist -- Zacarias Moussaoui, who is likely to go to trial around the 10th anniversary of the World Trade Center attacks at the excruciatingly slow rate that his case is proceeding.

Why did the Justice Department want to avoid a high court review? Because it feared that the Supremes might not be as accomodating the Fourth Circuit had been.

And before red state-red meat types get exercised over a bunch of running dog liberal activist judges kneecapping the administration, it should be noted that the Fourth Circuit is a seriously conservative court.

In fact, the rebuke to the administration in the Padilla case was delivered by Judge J. Michael Luttig, a conservative darling and leading candidate for the Supreme Court vacancies that President Bush filled last fall. It seems that even conservative judges don't like being diddled by conservative administrations.

So why is the administration's record of post-9/11 terrorist prosecutions so freaking lousy?

The Bush presidency like to present itself as being a pillar of strict constructionism because that plays well in the conservative circles peopled by the Michael Luttigs of the world. Nevertheless, a hallmark of that concept -- fealty to the "rule of law" -- remains a troublingly elusive concept in how it responds to the major challenges on its watch.

The administration's belief that it is above the law and therefore not beholden to it is currently on view in the hubbub over the secret National Security Agency spying directive. But when one looks at the longish sweep of the Bush presidency, the consequences of its repeated failure to hew to the rule of law is nowhere more evident than in the mess it has made of prosecuting terrorists -- rather incredibly even though the laws are well stacked in its favor.