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."