Conservative Court Questions
Administration's Honesty
Huffington Post
Stephen Kaus
December 21, 2005
Accusing the Bush Administration of being disingenuous is no longer a
liberal pursuit. The Fourth Circuit Court of Appeals, a bastion of Right-Wing
fundamentalism, today called out the Administration for duplicity. Led by
former (very former now) Supreme Court candidate Michael Luttig, a three judge
panel refused to transfer Jose Padilla to civilian custody and refused to
vacate its previous opinion.
The fourteen-page opinion makes a number of charges against the
Administration. Fundamentally, it accuses the government of changing its
version of the facts to suit its purposes and improperly seeking to avoid
Supreme Court consideration of whether the President has the power to declare a
U.S. citizen an "enemy combatant." The Court also castigates the government for
at least creating the appearance that there really was not such a great need to
hold Padilla as an enemy combatant and that the charges that he had entered the
country to set off bombs might not be true.
Shortly after the Court had issued an opinion on September 9th, affirming
the right of the President to declare Padilla an enemy combatant and remanding
the case to a lower court for a determination of the legitimacy of that
designation, Padilla was abruptly indicted in Florida. The indictment "made no
mention of the acts upon which the government purported to base its military
detention of Padilla … namely that Padilla had taken up arms against the
United States forces in Afghanistan and had thereafter entered into this
country for the purpose of blowing up buildings in American cities."
The government then asked the appellate court to allow the transfer to
civilian court, as may be required by a rule of Supreme Court procedure. When
the Court of Appeals questioned the different facts, the government asked the
appellate court to withdraw its decision entirely. In a scathing opinion, the
court refused to do so.
While it is couched in somewhat legalistic language, the opinion basically
says that a citizen would conclude that the government is lying by changing the
facts. For three and one half years, the opinion states, the government held
Padilla militarily, "steadfastly maintaining that it was imperative in the
interest of national security." Then, all of a sudden, the need for military
custody was gone and it was fine for Padilla to be in civilian court, with
lawyer and all.
"Absent explanation," Judge Luttig wrote, "our authorization of Padilla's
transfer under the circumstances described and while the case is awaiting
imminent consideration by the Supreme Court would serve only to compound the
appearance to which the government's actions, even if wholly legitimate, have
inescapably given rise."
But wait, there's more:
"As the government must surely 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 upon which
it had 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 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. 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."
Yesterday, U.S. District Court Judge James Robertson resigned from the
secret Foreign Intelligence Surveillance Court, reportedly because he felt he
could not trust the Government's submissions. He is a liberal, so the
warbloggers say he does not count. Judge Luttig is anything but a liberal. And
he does not appear to believe the President either.
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