by TChris

After fighting so vigorously to keep Jose Padilla from having his day in court (TalkLeft background collected here), the Justice Department now finds itself fighting to convince the Fourth Circuit to disregard its earlier claim that Padilla is actually an enemy combatant who should be denied the protections of the Constitution. In the words of Emily Litella, "Never mind."

In papers Friday, lawyers for the Justice Department said that the president had the authority to choose to prosecute Mr. Padilla on charges of participating in a terrorist cell in North America. As a consequence, the issues raised in the case before the appeals court as to whether he could be held as an enemy combatant were now moot. The court should even withdraw its opinion on the matter, the department said.

Accusations that Padilla intended to detonate a “dirty bomb” somewhere on U.S. soil have quietly slipped away, leaving the Fourth Circuit to wonder what all the fuss was about. The Justice Department likely fears that the Supreme Court would reject its authority to declare an American citizen arrested within U.S. borders an “enemy combatant.” But the Fourth Circuit may be unwilling to treat the question as moot, given the government’s ability to flip-flop once more if its criminal case against Padilla unravels (as did its heralded terrorism prosecution of Sami al-Arian).