More judges hanging George out to dry

This is incredible. I guess when someone has a lifetime appointment, they don't feel such a need to kiss Bush's ass. From the NYT:

A federal appeals court delivered a sharp rebuke to the Bush administration Wednesday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges.

In denying the administration's request, the three-judge panel unanimously issued a strongly worded opinion that said the Justice Department's effort to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration's behavior in the Padilla case could jeopardize its credibility before the courts in other terrorism cases.

What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., 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, an American citizen, indefinitely without trial as an enemy combatant.

[...]

Prof. Carl W. Tobias of the University of Richmond Law School, who has written about the government's legal strategy in terrorist cases, said that the ruling on Wednesday was an extraordinary rebuff to the Bush administration by the judicial branch.

"It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," Professor Tobias said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill used in expending their institutional capital in support of Mr. Bush's action only to have the government decide that it no longer wanted the authority that it had sought so strongly.

This whole case had chapped my hide from day one. Padilla has been used from the beginning (remember the sudden announcement by Ashcroft regarding his arrest . . . one month after the fact?) At this point they don't even want to try him on the original charges.

Government officials initially portrayed him as someone who was considering a plot to explode a radioactive "dirty bomb" in some American city and then to destroy gas lines to destroy public buildings.

In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan.

Bush's judges are not having any of his BS. Between Robertson resigning and Luttig's snark, it seems that Bush is left to twist in the wind.

Although Judge Luttig was careful in his opinion to avoid flatly asserting that the government had misbehaved, his skepticism about its behavior was unmistakable. He used the word "appearance" several times in explaining why he believed the government's approach in the Padilla case raised suspicions.

Judge Luttig said the government might not have fully considered the consequences of its approach, "not only for the public perception of the war on terror but also for the government's credibility before the courts in litigation."

He said the government "must surely understand" that it has left the impression that Mr. Padilla may have been held for more than three years by mistake.

Merry Christmas everyone!

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