Last month, the US government abruptly switched its strategy on Jose Padilla. Originally designated an "enemy combatant" and detained without trial for over three years in military custody, Padilla was suddenly charged in civillian court, for offences which had nothing to do with the claims used to justify his extraordinary detention. The reason? Padilla's appeal for a write of Habeas Corpus was about to hit the Supreme Court, and the government desperately wanted to avoid any judicial review of its conduct.
Now, a federal appeals court has said that that's not on, and refused permission to transfer Padilla to civilian custody. And they were pretty explicit about their reasoning:
apart from the need to protect the appearance of regularity in the judicial process, we believe that the issue presented by the government's appeal to this court and Padilla's appeal to the Supreme Court is of sufficient national importance as to warrant consideration by the Supreme Court, even if that consideration concludes only in a denial of certiorari.
They also take a swipe at the government for refusing to provide any explanation for the difference in charges, and for apparantly believing that the principle they have been arguing for three years - that the President has the right to detain anyone, anywhere, with no right of judicial review - "can, in the end, yield to expediency with little or no cost to its conduct of the war against terror". Or its credibility in the courts.
There is now no avoiding the issue. The Imperial Presidency will be tested in court, whether the President likes it or not.