President George Bush faced a rare challenge from the judiciary yesterday when two courts questioned the legality of his expansion of presidential powers in the war on terror.
In a startling rebuke, a federal appeals court refused to allow the transfer of a terror suspect, Jose Padilla, from military to civilian custody and strongly suggested that the Bush administration was trying to manipulate the judicial system.
Meanwhile, the Washington Post reported that judges of the secret court established under the foreign intelligence surveillance act (Fisa) had demanded a briefing from Bush administration officials on why they believed it was legal to bypass their authority and eavesdrop on the telephone conversations and email of American citizens without a warrant.
The Fisa court had been in charge of issuing such warrants until 2002 when President Bush signed orders enabling the National Security Agency to monitor domestic communications without court oversight. The judges reportedly now fear that the information thus obtained by the NSA was then being used improperly to obtain wiretap approvals from Fisa courts.
Such challenges to the legal philosophy of an administration are exceedingly rare, and arrive at a time of intense debate on the White House contention that the war on terror justified an expansion of presidential power.
The administration suffered an additional rebuff when the senate bowed to civil liberty concerns, agreeing to renew its trademark anti-terror legislation, the Patriot Act, for a mere six months.
However, the rebuke from the fourth circuit court of appeal in Richmond, Virginia, was especially surprising because the judges have a reputation as conservatives, and have previously ruled in favour of the administration's efforts to hold Padilla indefinitely without trial.
"It was difficult for me to think of another situation where a court has said this to the government," said Carl Tobias of the University of Richmond law school, who has written about the government's conduct of terrorism cases.
In its ruling, the court warned the Bush administration it risked giving "an appearance that the purpose of these actions may be to avoid consideration of our decision by the supreme court".
The judges also warned of the dangers of leaving the impression that Padilla had been held for years by mistake, saying that could inflict "substantial cost to the government's credibility before the courts".
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