Update: Bush's War on Terror and Civil Liberties

The Bush administration, which fared poorly during oral arguments before the U.S. Supreme Court last week regarding the president's wartime detention powers, did somewhat better today as the top court rejected by a 6-3 margin an appeal filed by alleged terrorist Jose Padilla, the so-called "dirty bomber."

"Somewhat" is the operative word because the Supremes, in effect, sidestepped Padilla's challenge to President Bush's detention powers but refused to dismiss the case as moot.

Padilla, who originally was classified as an enemy combatant and held for three years without charges or access to a lawyer, now faces criminal charges in the civilian justice system, and the government had argued that the appeal over his indefinite detention was now pointless.

Nevertheless, three justices said the court should have agreed to hear the case anyway: Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

An appeals court panel had all but called for the court to deal with the case, saying it was troubled by the Bush administration's change in legal strategy after holding Padilla for more than three years without charges.

SCOTUSblog interpreted the action thusly:

The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president's wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and -- for an extended period -- without a lawyer. The Court, of course, took no position on whether that was the right result, since it denied review.

. . . The Administration was so eager to have the case out of the Supreme Court that it was willing to let the Fourth Circuit decision be erased, which would have been the result of a dismissal of the appeal on mootness grounds.

The victory for the government was not an unqualified one, however. The Court implied that Padilla has a legitimate concern that the government -- which repeatedly changed its handling of his status -- may again return him to military custody; it said that his case raised major issues -- including the role of the courts in dealing with presidential power, and it told all courts to stand ready to react quickly if the government again shifted Padilla's status or custody, in order to protect the writ of habeas corpus.. It even indicated that he would have a right to pursue a new appeal solely in the Supreme Court if his status were to change again. None of those comments would seem to be welcome to the Administration.

The handling of Padilla's case -- which has pinged and ponged as the Bush administration dredged up legal technicalities to keep it out of the Supreme Court -- has the regretably familiar earmarks of its serial mishandling of virtually every terrorist case that it has tried to prosecute.

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. That sensational charge was quietly 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.

After last week's Supreme Court showdown involving Osama bin Laden bodyguard Salim Hamdan, the administration certainly was relieved to get a half a loaf in the Padilla case (see the March 29 post on The Bush War on Terror -- And Civil Liberties), although I'm at a loss as to why it took a powder on Padilla while digging in on Hamdan.

In the Hamdan case, the government's top prosecutor had sought to engage the justices on what he claimed were the merits of its case, but a majority of the justices appropriately focused most of their attention on the deeply troubling question of whether Congress had stripped the court of its historic right to decide issues relating to habeas corpus.

MOUSSAOUI UPDATE

Jurors in the tumultuous Zacarias Moussaoui sentencing trial unanimously found today that the so-called 20th 9/11 hijacker was responsible for at least some of the deaths that occurred in the terror attacks, meaning that he could be subject to the death penalty. <>

The long trial has repeatedly been thrown into turmoil by Moussaoui's outbursts almost ended prematurely because of prosecutorial misconduct.

Details here.