Fourth Circuit keeps Padilla case alive, rebukes government

Wednesday, December 21, 2005
Fourth Circuit keeps Padilla case alive, rebukes government

Posted by Lyle Denniston at 04:19 PM

In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts.

The language used in the opinion -- reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.

The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review of the Fourth Circuit's Sept. 9 ruling.

Judge Luttig, writing for a three-judge Fourth Circuit panel, said "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."

In addition, Luttig said: "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." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."
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There was no mistaking the pique of the Fourth Circuit at the government's maneuvering in that court, and in its series of switched positions on Padilla.

Judge Luttig said the panel "cannot help but believe" that the government had underestimated the consequences of its differing treatment of Padilla in recent weeks. Those consequences, his opinion said, bear upon "the public perception of the war on terror" and on "the government's credibility before the courts in litigation ancillary to that war." Luttig conceded that the government perhaps had "carefully considered" those consequences "because of their evident gravity." But it was plain that the judges did not believe that was true.

The government's actions, the opinion said, "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."

Moreover, Luttig wrote, those actions "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 expedience with little or not cost to its conduct of the war against terror -- an impression we would have thought the government likewise could ill afford to leave extant."

"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."
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