Judicial Extremism from the 4th Circuit...

I missed this because, well, I'm in China:

The panel of the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., threw out a ruling by a trial judge in South Carolina that Mr. Bush had overstepped his bounds by detaining Jose Padilla, a Chicago native, for three years...

In an opinion written by Judge J. Michael Luttig, who has been considered by President Bush for a nomination to the Supreme Court, the panel said Mr. Bush had the right to detain Mr. Padilla as an enemy combatant under the powers granted the president by Congress after the Sept. 11 terrorist attacks in New York and at the Pentagon.

"The exceedingly important question before us is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda, an entity with which the United States is at war," Judge Luttig wrote. "We conclude that the president does possess such authority," citing the Congressional authorization.

Lutting- darling of folks like Hugh Hewitt bases his opinion to hold Padilla on the United States "being at war" with al Qaeda.

Ummm...when did Congress declare war? Is Lutting declaring war?

War is when war is declared; that would be a strict interpretation of the Constitution.

Moreover, if we are at war, how come they can't try Padilla for treason or espionage or conspiracy to commit murder?

I think the answer to that question's quite simple, and something that Lutting and the Feds don't want discussed: the detainment of Padilla has probably put in jeopardy the Feds' ability to try him.