The Fourth Circuit Court Is Not Amused, Mr. President

The sheer effrontry and brazenness of the Bush Administration's commitment to political expediency at all costs can be absolutely breathtaking. For three and one-half years they have been holding Jose Padilla, the supposed "dirty bomber", without trial on Presidential authority alone, claiming both that the indefinite detention was necessary for the country's safety and that the President's power in this regard was absolute.

We were inching ever nearer to the point where the Supreme Court would have to rule on the issue of Presidential power involved. Padilla's main case is under the judicial authority of the Fourth Circuit Court of Appeals. This court had made the ruling in the President's favor that Padilla's attorneys were appealing.

Suddenly, and for no immediately apparent reason, the Government decided to formally charge Padilla on much less serious offenses, and asked the Fourth Circuit Court to recind its prior ruling. The court, to its great credit refused. Judge Michael Luttig, who has been rumored to have been under consideration for the Supreme Court, makes perfectly clear that he thinks this is all a shennanigan, and makes the Court's displeasure with it perfectly plain:

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion...

In a plea that was notable given that the government had held Padilla militarily for three and a half years and that the Supreme Court was expected within only days either to deny certiorari or to assume jurisdiction over the case for eventual disposition on the merits, the government urged that we act as expeditiously as possible to authorize the transfer. The government styled its motion as an “emergency application,” but it provided no explanation...

Why is the Court so annoyed? Judge Luttig is very clear about why:

We are not in a position to ascertain whether behind this appearance there is the actual fact, because the government has not explained its decisions either publicly or to the court. The media has variously reported that the government’s abrupt change in course was prompted by its concern over Supreme Court review...

In one instance, immediately after we had initially declined to act on the government’s transfer motion, these concerns were detailed in the press and attributed to former and current Administration officials speaking on the condition of anonymity. It was even reported that the government had considered transfer and criminal prosecution of Padilla before its argument in this court that military detention of Padilla was necessary in the interest of national security. No such explanations have been provided to the court, however.

I'd be a little annoyed too, wouldn't you? The Bush Administration apparently thinks so little of the legal process as to tell the press [anonymously, of course] that the claim made to the Court of Padilla's danger to national security was simply a ruse.

This is clearly something you do not do to a court where Judge Luttig is presiding:

For four years, since the attack on America of September 11, 2001, a centerpiece of the government’s war on terror has been the President’s authority to detain militarily persons who, having engaged in acts of war against the United States abroad, have crossed our borders with the avowed purpose of attacking this country and its citizens from within -- the kind of persons who committed the atrocities of September 11...

On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case...

For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts...

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.

It seems like everybody these days, --including even the judges who have supported to the hilt the President's claims to extraordinary executive authority--is finally getting fed up with the politically pliant actions from expedient motives that have poisoned every undertaking of this President, even the ones most serious and most dire.

I got fed up with it a long time ago.