Why Did Luttig Quit?

How Bush alienated one of his most compliant judges

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Surprise, surprise! Former Judge J. Michael Luttig wants to spend more time with his family, make more money as his kids approach college age, and take up what his resignation letter refers to as the "singular opportunity" to work for the Boeing Company, "an American icon." That, at least, is how he rebuts the The Wall Street Journal's Jess Bravin and J. Lynn Lunsford, who have written a compelling analysis of Luttig's abrupt resignation, on May 10, from the United States Court of Appeals for the Fourth Circuit. Luttig's resignation from the most pro-government (or at least pro-executive branch) of the circuit courts, to become general counsel of Boeing, resulted, according to the Journal, from a breakdown of trust between Luttig and the Bush administration.

Simply put, after years of helping legitimize the legal legerdemain of the administration and the Department of Justice, Luttig got burned by his own allies. Back in 2002, Jose Padilla was arrested at Chicago's O'Hare Airport. When brought to New York and held as a "material witness," Padilla filed his initial petition seeking to vacate the material witness warrant, whereupon President Bush reclassified Padilla as an "enemy combatant" and transferred him to military custody at a naval brig in Charleston, South Carolina. At that point, Padilla reframed his petition in New York to challenge the extraordinary claim that the president has the authority to hold an American citizen arrested on U.S. soil, indefinitely and without trial. It was clearly the government's realization that it could lose in the moderate Court of Appeals for the Second Circuit, which has jurisdiction over New York, that caused the Department of Justice to surreptitiously transfer Padilla, with the challenge to the president's authority still pending in New York, to Charleston, which falls under the Fourth Circuit's jurisdiction.

In 2004, despite a Second Circuit ruling declaring that Padilla still fell under its jurisdiction, the Supreme Court, by a narrow 5-4 vote, allowed the administration to get away with this blatant forum shopping. Padilla was told that he would have to re-file his challenge in South Carolina. The Fourth Circuit thus was handed the opportunity to write an opinion of historic importance, while the administration had the benefit of the friendliest of venues. Luttig didn't disappoint. His September 9, 2005 opinion for the Fourth Circuit panel acceded fully to the administration's claim. The chief executive, Luttig proclaimed, could order the arrest on American soil and indefinite detention, with neither charge nor trial, of an American citizen. Simply by designating any detainee an "enemy combatant," the President could, in his sole and unreviewable discretion, effectively "disappear" anyone at any time.

Civil libertarians criticized the Fourth Circuit for investing so much power not just in one branch, but in one man, portending a radical diminution of liberty. They stressed that, under Luttig's decision, Padilla could not take advantage of the Constitution's guarantee, accorded all criminal defendants, of a public trial by indictment and jury in a court of law governed by Article III and relevant provisions of the Bill of Rights. Yet, from the administration's viewpoint, Luttig's opinion could not have been better. A holding that a citizen arrested on American soil had no more rights than those accorded a terrorist captured on a foreign battlefield gave the president unprecedented power.

Padilla requested Supreme Court review of the Fourth Circuit's opinion. Just days before the high court was expected to act on Padilla's petition, however, the DOJ bit the hand that fed it. Federal prosecutors indicted, in criminal court, the former enemy combatant. This reversal flew in the face of the government's earlier claim that its evidence was so sensitive it had to be dealt with outside the criminal justice system. Padilla would be given a trial after all. Suddenly everything the government had been telling the Fourth Circuit about the exigencies that made a public trial of Padilla unsafe for the republic had been cast into grave doubt.

Luttig, realizing that he had been taken for a ride, furiously rebelled from his role as the administration's enabler. Rejecting the DOJ's routine request that Padilla be transferred to the criminal justice system, Luttig's scathing December 21, 2005 opinion suggested that the government had disingenuously and manipulatively tried to evade Supreme Court review of its Fourth Circuit victory. People "familiar with Judge Luttig's thinking" anonymously told the Journal that his condemnation of the administration's tactics grew out of a concern that judges were expected to line up either behind or against the administration, rather than follow the law.

Meanwhile, unnamed pro-administration sources launched an unseemly counterattack on the judge who had theretofore been their staunchest ally. Luttig, his new detractors charged, had simply thrown a judicial tantrum because he was passed over three times for appointment to the Supreme Court, his life's ambition.

Whether or not there's any truth in that—and Luttig himself assured Legal Times that there was "nothing at all" to these speculations—Luttig certainly had reasons to throw a tantrum. His Padilla ruling inflicted great damage to the rule of law in this country, and we can wish him well at Boeing and still be glad he's gone from the federal bench. But it's revealing that even a judge so deferential to executive power could no longer tolerate the Bush administration's arrogance and lawlessness—not to mention the incivility of leaving a key judicial ally twisting in the wind.

Conservatives may have been able to dismiss Clinton-appointed Judge James Robertson's December 2005 resignation from the top-secret court established under the Foreign Intelligence Surveillance Act, days after The New York Times reported on the National Security Agency's unauthorized (by any court) domestic eavesdropping program. (Robertson, whom Supreme Court Chief Justice William Rehnquist had appointed to the FISA court, remains on the U.S. District Court for the District of Columbia.) Yet try as they might, pro-administration advocates cannot shake the reality that one of the most steadfastly conservative judges in the country publicly and contemptuously rebuked the Bush administration's unseemly power grab and manipulation in the "war on terror." Several more shoes might well drop, as conservatives and libertarians take a fuller measure of what powers the executive branch is seeking, and why.

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