Back to the brig.

Byline: The Register-Guard

Anyone still doubting that the Bush administration has an imperial view of executive branch's wartime powers should consider the recent 4th Circuit Court of Appeals ruling in the case of alleged "dirty bomb" plotter Jose Padilla.

In a clear and sternly worded rebuke, the court rejected the administration's request to transfer Padilla to civilian custody to face charges in Miami that he had conspired with al-Qaeda terrorists to commit attacks overseas. The opinion, written by Judge J. Michael Luttig - who was on Bush's short lists of candidates for recent Supreme Court vacancies - directly questioned the administration's motives. It even suggested that the president might be trying to evade a U.S. Supreme Court ruling on whether the administration could detain Padilla, an American citizen arrested in Chicago in 2002, indefinitely without trial as an "enemy combatant."

For perspective, consider that the 4th Circuit has a well-earned reputation as one of the nation's most conservative courts and routinely supports the administration on issues involving national security and terrorism. In the Padilla case, the same court last fall affirmed Bush's authority to hold Padilla as an enemy combatant - in fact, Luttig wrote the opinion.

So why did an ideologically sympathetic 4th Circuit reject the administration's latest request? Luttig left little doubt. Holding Padilla in a military brig for three and a half years and then abruptly deciding to try him after a court had already upheld his detention was a brazen ploy - one that Luttig wrote "threatens the government's credibility before the courts" - to sidestep a final ruling on "enemy combatancy" in the Supreme Court.

It's disturbing to see a U.S. citizen remain in military custody and denied his constitutional right to defend himself in the civilian justice

system. Yet that discomfort is offset by the prospect that Padilla's enemy-combatant case is still headed for the Supreme Court, which ruled in an earlier case that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Last Wednesday, the administration asked the Supreme Court to overturn the 4th Circuit ruling and to allow Padilla's transfer to civilian custody. In doing so, it clearly revealed its expansive view of executive powers by accusing the appellate court of committing an "unwarranted attack" on presidential discretion.

Unwarranted attack? That sounds like a more fitting description of the administration's post-9/11 onslaught against the judicial and legislative branches and the constitutional system of checks and balances that preserve the fundamental rights that Americans cherish.