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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.