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."Help Me Out Here Cousins!
In Padilla's case, the same three-judge panel that is now drawing the government's ire strongly backed the president's authority to hold Padilla without charges or trial in an earlier ruling. That decision, like the one refusing to authorize Padilla's transfer, was written by Judge J. Michael Luttig, who was a contender to be nominated by Bush to the Supreme Court this year.
Chief Justice John G. Roberts is the Supreme Court justice who oversees cases from the 4th Circuit, but it was unclear yesterday whether Roberts would rule himself on the government's request for Padilla's transfer. The full court is considering whether to take up the merits of Padilla's detention by the military.
[ cf WaPo ]
If the president didn't want the 4th Circuit to review the rights of the President To Unilaterally Detain Anyone, american or otherwise, then why did the President allow the matter to go to the 4th Circuit in the First Place? And now that the matter has been ruled on in the 4th Circuit, in his favor, why the need to come up with the reasons why the President never really meant to get the case in the 4th Circuit to begin with - since the central concern here is that the Administration is trying to unwrap the last few years of Court Rules, by simply transfering the matter out of one set of courts into another.
I am amused with the "Executive discretion" - what happened to 'Executive Privilege' that had once been the hot buzz... It is comical that they are worrying here about the government's "prosecututorial discreation" - but the matter is about detention without trial. Is there some confusion here about the order in which things are done? That one should have the trial before detaining? Or is that still a part of the failed Pre-911 mindset???
Help Me Out Here Cousins!