No Fury Like a Court Scorned

Jacob Sullum | December 22, 2005

Coming from what is generally considered the most government-friendly federal appeals court, yesterday's decision by the 4th Circuit denying the Bush administration's request to transfer accused would-be terrorist Jose Padilla from military to civilian custody is the judicial equivalent of a bitch slap. In a unanimous opinion written by Judge J. Michael Luttig (who reportedly was on the president's Supreme Court short list), the court said it looks like the administration is trying to avoid Supreme Court review of the 4th Circuit's September decision approving Padilla's indefinite detention as an "enemy combatant." Not cool, said Luttig: "The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound."

The court added that by keeping Padilla, a U.S. citizen, in a brig for three and a half years without charge or trial, then deciding to try him after all once a court approved the detention, the government "left the impression that Padilla may have been held for these years, even if justifiably, by mistake." (Luttig noted that the criminal indictment against Padilla "made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities.") And by pressing the claim that the president has the authority to indefinitely detain anyone he labels an enemy combatant and then seeming to abandon that claim by asking the 4th Circuit to withdraw its opinion, the government left the impression that "the principle in reliance upon which it has detained Padilla for this time...can, in the end, yield to expediency with little or no cost to its conduct of the war against terror." Also not cool:

These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an
objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

The rebuke is richly deserved. Even a court that was prepared to recognize the detention authority asserted by Bush is not prepared to let him submit his policies to judicial review only when he feels like it. And having been burned once, maybe the 4th Circuit will be a little more skeptical the next time the government says, "Don't worry--you can trust us."

Comments

|12.22.05 @ 9:21AM|#

"Any by pressing the claim that the president..."

Needs correcting?

|12.22.05 @ 9:36AM|#

I guess Luttig can stop worrying about Bush nominating him to the Supreme Court now.

Dave W.|12.22.05 @ 9:37AM|#

Transparency rocks. Let the light shine in, o mighty judiciary. We love how you expose the hypocrisy of the executive. Publically. Now more torture pictures, please. We want to see what ol' Saddam is bitching about now. He's got one of these trial thingees going, too.

|12.22.05 @ 9:39AM|#

I guess Luttig can stop worrying about Bush nominating him to the Supreme Court now.

Maybe he gave the wrong answer to the "As president, can I do whatever I please question?", therefore, no nomination.

|12.22.05 @ 9:47AM|#

I have but one qualm about the 4th circuit's ruling: As I understand it, rather than being transferred to civilian authorities and proceeding toward a jury trial, Padilla remains in limbo while the 4th circuit sorts out the issue of whether the executive branch acted honestly.

Don't get me wrong, I'm glad to see the executive branch get a smack-down, but there's a US citizen in custody. He's innocent until proven guilty beyond a reasonable doubt to the satisfaction of a jury of his peers. While the executive branch receives its much-deserved spanking, maybe a US citizen could get his Constitutionally mandated due process?

Dave W.|12.22.05 @ 9:56AM|#

Good question, T.

I wonder if the inconsistency between the asserted grounds of the military detention and the assertions of the later indictment give Padilla grounds to make a new (and hopefully expedited) challenge to the ongoing military detention. If it doesn't, it should.

More generally, what should Padilla's remedy be for the military detention, assuming it was improper? Does he get to walk away from the criminal indictment as "fruit of the poison tree?" Does he get monetary compensation for his 3 years (I doubt it, but)? Does he just get credit for time served (a cold comfort if he is found not guilty in criminal court)? Nothing?

|12.22.05 @ 10:08AM|#

He potentially has a 42 U.S.C. sec. 1983 claim for violation of his 5th Amendment due process rights, but I wouldn't hold my breath. Courts have a remarkably trivial attitude towards wrongful arrest and detention.

|12.22.05 @ 10:25AM|#

SR, is there really a potential §1983 claim here? I know that federal "actors" can be held liable under §1983, but I thought that the claim had to be based on actions under the "color" of state law, not federal. Not that I'm any expert on the matter.

Timothy|12.22.05 @ 10:25AM|#

More generally, what should Padilla's remedy be for the military detention, assuming it was improper?

I'm sure he'll get some half-hearted apology from a minor official, and maybe a cookie.

|12.22.05 @ 10:28AM|#

This is why the constant blathering about "activist judges" - how dare they act like a coequal branch of government? Gums up the works.

I'd rather it weren't just up to unelected judges but congress too, at this late date, is finally getting a tiny little bit of light between itself and the White House. The dems will have to learn how to win elections again before we're back in the Promised Land of divided government, but it's a start.

|12.22.05 @ 10:29AM|#

Maybe he gave the wrong answer to the "As president, can I do whatever I please question?", therefore, no nomination.

Up till now, he always had. I don't know if anyone could possibly had been more in lockstep with the administration than Luttig. This is a major shock.


These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today.

Wow. Instead of reading my daughter the story of The Boy Who Cried Wolf word-for-word, I might have to borrow this language and work it in there instead.

|12.22.05 @ 10:39AM|#

Before we get too enthusiastic about this "bitch slap", let's wait for the Supremes to overturn the original decision, shall we?

|12.22.05 @ 10:39AM|#

I'm sure he'll get some half-hearted apology from a minor official, and maybe a cookie.

And a life-long wiretap, "just in case."

Warren|12.22.05 @ 10:40AM|#

And having been burned once, maybe the 4th Circuit will be a little more skeptical the next time the government says, "Don't worry--you can trust us."

I can't understand how they ever did to begin with. I thought that was one of the advantages of an appointed judiciary. Isn't that supposed to make the impervious to the fickle winds of political fashion? It's like that Tom Cruise line from A Few Good Men, "Should we, or should we not follow the advise of the galactically stupid."

|12.22.05 @ 10:46AM|#

Expecting the government to prove a citizen's guilt before imprisoning said citizen, or expecting the President to be subject to some sort of 'checks and balances,' is un-Constitutional.

VM|12.22.05 @ 10:47AM|#

uh oh. someone fell out of the Jaunita tree again.

:)

|12.22.05 @ 10:50AM|#

Expecting the government to prove a citizen's guilt before imprisoning said citizen, or expecting the President to be subject to some sort of 'checks and balances,' is un-Constitutional.

Not to mention unpatriotic, objectively pro-terrorist, and imperiling the lives of Americans eveerywhere!

|12.22.05 @ 10:52AM|#

Timothy;

"More generally, what should Padilla's remedy be for the military detention, assuming it was improper?

I'm sure he'll get some half-hearted apology from a minor official, and maybe a cookie."

Maybe he will get a Medal of Freedom for his troubles.

|12.22.05 @ 10:54AM|#

Since there's a good chance that he'll never actually get that cookie, if he's ever released we should give him some evil cupcakes.

And maybe a cheeseburger.

And a roasted owl, stuffed with apple dressing.

|12.22.05 @ 10:55AM|#

Questioning the President is un-American. Remember the sterling principle upon which this country was founded: the unconditional acceptance of authority.

As Patrick Henry once said, "Give me oppression or give me death!"

VM|12.22.05 @ 10:56AM|#

what about assless chaps?

and are the apples from an evil orchard?

Warren|12.22.05 @ 11:00AM|#

t,
I thought you were all about the corn syrup

VM|12.22.05 @ 11:06AM|#

woo hoo!

keep channeling Jane! woo hoo.

wait a sec--- J. J. like at the end of "Dirty Rotten Scoundrels". J for Jackel. J for Janet.

hmmmmmmmmm.

:)

Warren: evil corn syrup?

here's an �bercynical thought: is this yet another chess move in this hyperbrilliant realpolitik move that the administration's apologists have been claiming is being played? why, yes it is. but the devil is in the details. i believe that's the buzzphrase du jour from that camp.

Dave W.|12.22.05 @ 11:17AM|#

Or some fetal pork. I wonder if Muslims can eat that. You would think they could since the pork was never born and therefore never attained the status of actual pork.

neener neener|12.22.05 @ 11:22AM|#

oh - you're still here? hasn't your imaginary friend called you off to do some other imaginary bidding?

|12.22.05 @ 11:24AM|#

That wasn't very nice, VM.

VM|12.22.05 @ 11:27AM|#

rrrriiiigggghhhttttt.

Timothy|12.22.05 @ 11:30AM|#

And a roasted owl, stuffed with apple dressing.

As long as it's Spotted Owl. Gotta be Spotted Owl, endangered species taste better.

|12.22.05 @ 11:39AM|#

Are you nuts? Spotted owls have less meat than McNuggets.

Timothy|12.22.05 @ 11:45AM|#

David: That just means you have to eat more of them. DUH!

|12.22.05 @ 1:00PM|#

I hate to defend the administration here and all, but it's entirely possible that evidence collected through military/intelligence means might not be admissible in court, and that they charged him with crimes they could make stick based on evidence that would fit the bounds of a criminal trial.

Pooh|12.22.05 @ 2:00PM|#

thoreau,

As to why the 4th circuit didn't allow the transfer, a theory I've seen advanced, and I think I buy, is that by doing it this way, the 4th Cir. more or less guarantees Cert. If it was transferred, it would be easier for SCOTUS to decline review as either moot or premature. Whether this is good for Padilla himself, who knows? (Parenthetically, who cares?)

Right now, the award for biggest bench-slap of the week is a dead heat between Luttig and Jones, Luttig getting points for brevity while Jones scores for depth and breadth of indignation.

|12.22.05 @ 2:01PM|#

But wouldn't that mean that the civil system was adequate all along?

|12.22.05 @ 6:03PM|#

And having been burned once, maybe the 4th Circuit will be a little more skeptical the next time the government says, "Don't worry--you can trust us."

Heh. Ha, HAHAhaHa...(uproarius laughter)...

(wiping tears from eyes)...Gosh Mr. Sullum, you are such a card.

|12.23.05 @ 2:45AM|#

I hate to defend the administration here and all, but it's entirely possible that evidence collected through military/intelligence means might not be admissible in court, and that they charged him with crimes they could make stick based on evidence that would fit the bounds of a criminal trial.

Hey, I hate to quibble and all, but if it isn't admissible in court, it isn't actually evidence, now is it?

More to the point, even if the change in charges really is to attempt to avoid a Supreme Court decision that invalitdates the administration detention process, it doesn't say much about how dangerous Mr. Padilla actually is that they would simply give up on him. If he was truly the deadly dirty bomber up to his neck in al-Qaeda that the administration claimed, who are the more dangerous American citizens who they need to preserve the system in order to detain? If he was truly the deadly terrorist they had claimed, wouldn't he be the ultimate test case for the administration that the policy had merit?

|12.23.05 @ 1:31PM|#

It's a vicious cycle... and it will only get worse.