The Executive Branch vs. the Federal Judiciary

if bush is able to stack the courts with litmus-tested loyalists, he won't be having to fight to get his way...

A federal appeals court infringed on President Bush's authority to run the war on terror when it refused to let prosecutors take custody of "enemy combatant" Jose Padilla, the Justice Department said yesterday, as it urged the U.S. Supreme Court to intervene.

The sharply worded Justice Department filing was the latest salvo in an increasingly contentious battle over Padilla, a U.S. citizen arrested in Chicago in 2002 and initially accused of plotting to detonate a radiological "dirty bomb." Padilla was held for more than three years by the military before he was indicted last month in Miami on separate criminal terrorism charges.

[...]

It was another remarkable turn in Padilla's case, which has evolved into a legal spat between the executive and judicial branches of government. The dispute is especially unusual because it involves the 4th Circuit, which has been the administration's venue of choice for high-profile terrorism cases since the Sept. 11, 2001, terrorist attacks.

The 4th Circuit has given the government extraordinary latitude on national security matters, ruling for prosecutors in the cases of Sept. 11 conspirator Zacarias Moussaoui and Yaser Esam Hamdi. Hamdi and Padilla are the two U.S. citizens held as enemy combatants as part of the government's campaign against terror since Sept. 11.

The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla's incarceration and engaged in "an unwarranted attack on the exercise of Executive discretion." Prosecutors accused the court of going so far as to "usurp" Bush's authority as the nation's commander-in-chief and his government's "prosecutorial discretion."

do ya suppose the 4th circuit may be having some reservations about handing the reins of unlimited and unopposed power to a president who claims such power is necessary in order to wage an endless war...?

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