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Just Move Padilla

Much though I love to the see the Bush administration take lumps for its lawlessness, the Fourth Circuit Court of Appeals' decision to refuse to permit Jose Padilla to be transferred to civilian custody seems like judicial gamesmanship run riot. Let the man be transferred, even if it renders moot the controversy over whether an American citizen can be held indefinitely as an enemy combatant.

Mr. Padilla has been in federal military custody since May 8, 2002. Earlier this year, the Fourth Circuit upheld the Government's right to hold this man absent criminal charges. The case is now on the docket of the United States Supreme Court. It is perhaps as important a case as any the Court shall decide in the years to come.

But just recently, a federal grand jury indicted Padilla, finally. The Government now wants to do what it should have done all along -- permit this citizen to test the Government's assertions about him by demanding a trial by jury.

The Fourth Circuit concludes that the Government's decision to seek transfer of Mr. Padilla from military to civilan custody amounts to "at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the United States Supreme Court."  The Circuit also concludes that the issues raised in Mr. Padilla's case are of sufficient national importance to warrant consideration by the Supreme Court.

I agree with both conclusions, but still find the case, and the court's ruling, bizarre.

Mr. Padilla has been held unlawfully by the military. The president does not have the right to suspend habeas corpus in such a manner, and to hold citizens by fiat. The very assertion of such a power is shocking. Should the Supreme Court hear this case, I hope for a ringing denunciation of the practice of indefinite detention.

But I don't think the Fourth Circuit, or any court, for that matter, gets to tell the administration that it cannot transfer Mr. Padilla from military to civilian custody. The very fact that such permission was sought is an act of staggering stupidity. An administration brazen enough to thumb its nose at Mr. Padilla's fundamental rights for three years has suddenly become so coy as to ask permission to move the man from one deck chair in the executive branch to another?

What triggered the Fourth Circuit's reaction was apparently the administration's desire to have the court vacate its earlier ruling. Don't mess with judicial economy, the court seems to be saying.

Here's what should happen. The administration should simply transfer Mr. Padilla to civilian custody. It does not need court approval for that. It should then move to dismiss the case pending before the Supreme Court as moot.

Were Mr. Padilla's rights violated by his three year sojourn in military custody? Absolutely. Let him bring a Bivens claim. Then let the administration pursue its criminal case against Mr. Padilla subject to all the limitations the constitution imposes on Government conduct. No evidence seized during his unlawful detention should be admitted.

All this pussyfooting aroung creating special rules, precedents and issues relating to the so-called war on terror devalues the currency of liberty. There is but one constitution, and it speaks not of special rules to permit the abuse of Mr. Padilla, or, for that matter, of you and me. The Fourth Circuit is not standing tall for liberty in this battle. Rather, it is doing precisely what the administration has done: It is asserting powers it does not have in the name of a war with enemies we cannot see.

The administration has not been rebuked by the Fourth Circuit. Rather, both are playing a dangerous game by pretending that there is a special set of doctrine and rules flowing from neither the text nor the structure of the constitution permitting the government to do what it pleases, when it pleases, to whomsoever it pleases. Shame on both president and court.