Nothing But Love 4 Ya, Mr. Bush - From Your Activist Fourth Circuit
OK this is just too much judicial bitchslapping of George Bush and his Right Wing Agenda for me to take in just one week.
First there was the decision in Kitzmiller v. Dover School Board, 139 pages of deliciously firm and stern judicial reasoning in the form of Judge Jones' 139 page gutting of the Dover School District's "Intelligent Design" aka CREATIONISM mandate.
But now there is the decision from the Fourth Circuit Court of Appeals -- understood by all of us in the practice of law to be the most ideologically conservative circuit in the country -- regarding the poster-child for US citizen enemy combatants, Jose Padilla. This decision, authored by Hon. J. Michael Luttig, a front-runner candidate for elevation in Bush's War on the Supreme CourtTM can be summarized neatly as
Slap. Slap. Slap, Slap, SLAP. (But still got nothing but love for you, Mr. President.)
For those who may not remember the history of the Padilla case, a brief recap. Since 2002 Jose Padilla has been held by in a military brig largely incommunicado. First, he was arrested on a material witness warrant related to 9-11. Then, just before the hearing to determine whether the warrant should be quashed, President Bush designated Padilla as an enemy combatant. In an extremely high profile press conference subsequent to his detention, Mr. Padilla was accused of conspiring with al Qaeda to use radioactive "dirty bombs" in terrorist attacks within the United States, targeting apartment buildings in New York, Washington and Florida. He was then transferred to military custody in South Carolina.
Mr. Padilla challenged his detention through a habeas petition, contending that his indefinite incommunicado detention as an enemy combatant without criminal charges pending, when he was a US citizen arrested on US soil, was unconstituional. Ultimately, his case reached the Supreme Court. The decision that ultimately issued from the Court was one of a triumverate of decisions relating to Bush's War on Terror, 9/11 and the power of the executive in wartime issued by the Court on the same day -- Rumsfeld v. Padilla, Rasul v. Bush and Hamdi v. Rumsfeld.
(Those three decisions really should have warned someone over at the White House that Emperor George and his minions had crossed a serious constitutional line with their War on TerrorTM methods. But noooo........)
Anyhow, in Padilla's case, a 5-4 majority Supreme Court punted for jurisdictional reasons instead of reaching the merits of Padilla's case. It found that his habeas claim should have been filed in the 4th Circuit -- which includes South Carolina, where Padilla was being held in the brig -- and not the Second Circuit. Despite the eloquence of its language in Hamdi and Rasul about the utter unconstitutionality of the President's refusal to grant due process to folks' being held as terrorist enemy combatants, the Court rightfully did not reach the merits of Mr. Padilla's case. It did note, however, that when Padilla's case returned, the Court was going to review it under the standards it was laying down the same day in the Rasul and Hamdi cases: standards that did NOT favor the idea of indefinite incommunicado detention.
Another government less filled with hubris would have seen the writing on the wall right then and there. But nooooo.......................
So back Mr. Padilla's case went, to the Fourth Circuit. The Fourth Circuit District Court agreed with Padilla about his detention and ordered him released, but the Fourth Circuit Court of Appeals -- on which former (after this week, anyhow) Supreme Court hopeful Michael Luttig sits -- did not. Instead, in July, 2005 the appellate Court -- in an opinion authored by Judge J. Michael Luttig -- upheld Mr. Padilla's detention across the board, saying that the Congress' Authorization for Use of Military Force following 9-11 gave the President the authority to detain Padilla because he had returned to the US to carry out the dirty bomb plot. So Mr. Padilla remained incommunicado, without charges, at the military brig in South Carolina. Until last month, when the government finally got around to doing what it should have done from the very beginning: it indicted Jose Padilla.
But that's where DOJ's War on Terror problems began in earnest.
You see, the indictment didn't look anything like the story the country had been told for 3 years. It made no mention of the "dirty bomb plot", the reason that everyone from Ashcroft to Rumsfeld to Bush insisted was the reason that Padilla was being held incommunicado as an enemy combatant. The indictment had no mention of a plot to blow up apartment buildings. No mention of a "dirty bomb".
Mr. Padilla was finally indicted in South Florida for conspiring to (a) travel overseas to train for jihad and (b) finance and otherwise support terrorist organizations believing in jihad. In the 1990's and during the year 2000. There are no factual allegations of any kind for Jose Padilla after July 24, 2000 - the date on which Padilla allegedly filled out a "Mujahideen Data Form" in preparation for "violent jihad training in Afghanistan." - while he himself was apparently still in Egypt.
(WTF is a "Mujahideen Data Form"??? Was our Now Completely Ignored Arch Enemy really so stupid that he was having folks fill out human resources paperwork *and* send it to his training camps in another country before traveling there personally? Somehow, this just doesn't seem consistent with the level of common sense that one expects from the mastermind of the most heinous attack on America. In other words, *before* 9-11.
Judge Luttig - a man whose conservative credentials were so strong that he has regularly been considered to be a top candidate for appointment by Bush to the Supreme Court, ended this week's Padilla decision with the following:
Because of their evident gravity, we must believe that the consequences of the actions that the government has taken in this important case over the past several weeks, not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation ancillary to that war, have been carefully considered. But at the same time that we must believe this, we cannot help but believe that those consequences have been underestimated. 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, 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..
Read that again:
"consequences [on public perception and the government's credibility with the court] have been underestimated"
"Padilla may have been held for these years, even if justifiably, by mistake"
"these impressions have been left at what may ultimately prove to be substantial cost to the government's credibility before the courts".
Judge Luttig, the author of the Padilla slap-down, has been described as "the most conservative judge on the most conservative circuit in the country". He has regularly been groomed and encouraged to dream of the Supreme Court. So I know that he must have been crying into his Jim Beam when he signed onto those words, knowing they would be the death knell of his higher aspirations, given how petty and vengeful Dubbya is with those who he thinks have crossed him politically. Yet Judge Luttig's words come as close to anything that either Judge Luttig or anyone else on the Fourth Circuit will ever write acknowledging that their court did not appreciate one bit being played, and played hard, by the Executive Branch. I would feel sorry for Judge Luttig having to put the smack down on one of his ideological brothers in the Right Wing Theocracy Wars - if his lengthy record as a jurist didn't otherwise make clear he is a hardcore right wing judicial activist who hates laws that protect women who are victims of domestic violence (Brzonkala v. Morrison, striking down VAWA) as much as he loves the death penalty, still vengeance ridden because his father was killed by a carjacker who was later executed.
Despite this, there is increasing hope. Because, with increasing evidence of Bush's imperialistic dismissal on multiple fronts of our basic civil liberties and constitutional rights, this week's Padilla decision suggests that we may have finally found something that members of the most hard-core right and the ultra-left can agree on.
I am in paroxyms of legal joy.
(P.S. This is a great resource center for those following Padilla closely.