As we previously noted, the U.S. Court of Appeals for the Fourth Circuit asked the Justice Department for more information on whether it should vacate its ruling that Jose Padilla could be detained as an "enemy combatant" without charge. The court sought the government's position after Padilla was indicted.
Reuters reported on Friday that the Justice Department "urged a federal appeals court to set aside its September ruling that allowed the United States to hold an American citizen as an enemy combatant without being charged." The government argued that Padilla's indictment rendered "the case regarding his military custody was moot."
This is a somewhat surprising move, at first blush, as the Circuit Court's ruling was viewed as a major victory for the government's efforts in the war on terrorism. One would think that the government would want this ruling to stand and serve as precedent in that circuit. As the SCOTUSBlog explains:
the withdrawal of its prior ruling would eliminate a major precedent on President Bush's wartime powers, but the government apparently is willing to accept that outcome if -- as the government expects -- it would avert any further inquiry into the facts behind Padilla's seizure, and perhaps also thwart his pending appeal to the Supreme Court.
The Fourth Circuit on Sept. 9 upheld President Bush's authority to detain a suspected "enemy combatant" who is also a citizen, no matter whether that individual was captured on U.S. soil or overseas in a combat zone. But it did not rule on whether, in Padilla's case specifically, the facts justified his capture at O'Hare Airpot and his three-plus years of detention. Padilla has asked a District Court in South Carolina to devise a procedure to decide that factual challenge -- another proceeding that the government now wants headed off.
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