The biggest legal news of the week was a decision yesterday by Judge Michael Luttig of the Fourth US Circuit Court of Appeals in Richmond. The Fourth is considered the most conservative of the Court of Appeals, and Luttig the most conservative of judges. He makes Roberts and Alito look liberal, which is why the President thought it would be too hard to get him confirmed to the Supreme Court. It must have thus shocked the Bush administration that he sharply rebuked their handling of the Padilla case. If you’ll recall, over three years ago the government accused American CITIZEN Jose Padilla of being a potential “dirty bomber.” He was stripped of his rights as a citizen under the U.S. Constitution and was thrown into jail as an enemy combatant based upon the secret evidence of the Administration. The assertion was that he had no rights. His lawyer, Andrew Patel, appealed his status and it was headed for the Supreme Court after a brief layover in the Fourth. At this point (over three years into the ordeal) the government changed its mind. To paraphrase the Justice Department’s logic, “let’s just change his status and charge him with other crimes so that the existing case cannot be appealed to the Supreme Court.” Not so fast, said Luttig. The Christian Science Monitor reports:
The administration’s actions create “an appearance that the government may be attempting to avoid consideration of our decision [in the Padilla case] by the Supreme Court,” writes Judge J. Michael Luttig in a 13-page order released on Wednesday.“We believe that the issue [in Padilla’s case] is of sufficient national importance as to warrant consideration by the Supreme Court,” Judge Luttig writes.
The judge went on to criticize the government for underestimating the damage its actions were causing to public perceptions of the war on terror and the government’s credibility before the courts.
“While there could be an objective that could command such a price as all this, it is difficult to imagine what that objective might be,” Luttig writes.
The rebuke carries extra sting, analysts say, because of who delivered it. Luttig is one of the nation’s most conservative appeals court judges and was on the short list of White House favorites for each of the two recent vacancies on the Supreme Court.
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p>It has been a real bad week for Civil Libertarians, hasn’t it? It seems that every time I turn on the television there is news of one of my Constitutional rights is being eroded. Earlier this week Newsweek asked, “why have [Americans] reacted so insipidly to yet another post-9/11 erosion of U.S. civil liberties?” This question was posed in reference to the revelation of illegal wiretaps. I point this out because these two issues are inextricably linked. A U.S. citizen who is spied upon without a warrant can then be labeled an enemy combatant and locked up without any rights, all on the word of the Bush Administration. Why then are they jonesing so bad for a Patriot Act renewal? This method is way more powerful.
Suddenly, terror suspect Jose Padilla seems a lot more dangerous to the Bush administration.It has nothing to do with his suspected involvement in Al Qaeda bomb plots, analysts say. Rather, the administration worries that the US Supreme Court might agree to hear Mr. Padilla’s case and decide one of the most pressing constitutional issues in the war on terrorism. And by all appearances, government lawyers think they might lose.
The issue: Does President Bush have the power as commander in chief to order the open-ended military detention of US citizens that he deems enemy combatants?
It is not a minor matter. The claim of broad presidential power is a cornerstone of the administration’s effort to restore what it views as the proper level of executive authority after decades of erosion following the Watergate scandal. Such robust, independent presidential power is said to be critical to safeguarding the country from a repeat of the 9/11 terror attacks. [link]
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p>Patel also had choice words for the government:
“Though its factual allegations have changed with the prevailing winds, the government’s actions have been strategically consistent,” wrote Padilla’s attorneys, Andrew Patel and Donna Newman. “At every turn, the government has sought to manipulate the federal courts’ jurisdiction and evade judicial review…” [Link]
i guess that’s what the bushies get for passing him over. perhaps he was a closet liberal all along, and now that he’s been passed over, he decided to just let loose.
or alternatively, to paraphrase cicatrix, Luttig? bitter? much? never!!!
Great topic. Separately, is Andrew Patel desi?
I think I was wondering that in my previous entry about him. I’m not sure but with the name Patel he’s got to have some desi in him. 🙂
great post abhs. i agree w ak. shocking on one level from luttig, but on the other hand, hes not too happy w bush.
re civil liberties, it was sick to hear bush’s address touting democracy in the middle east (i love it when things go wrong here-they move the ball/cheney/rumsfeld to iraq and afghanistan and when they go wrong there, 2000 dead, etc., they turn the spotlight back on the homeland). what foot do we have to stand on when bush has effectively declared there is no fourth amendment? im happy to hear that the fisa judge (appointed by rhenquist) stepped down in protest; like luttig, even the right is getting fed up. but since when in this country is the right wing judiciary leading the charge before the public? bush’s poll numbers upped again as he bait and switched illegal wiretaps to the iraq issue, and any means possible.
for interesting reading, check out the 70s cases where the dc circuit court and supreme court held nixon/kissinger liable for damages for wirertapping. the supreme court found the same, but on nixon by 82 reversed course and expanded the qualified immunity doctrine to shield gov officials.
dems, please come through in the midterm-its gotten too low, no? they have smart folks. wtf?
Or maybe he married in? 😉
Yup, great post Abhi. I’m glad Luttig realized that, left to his own devices, Bush would take America back to its pre-revolutionary days – only worse. -sigh- Why hasn’t Bush been impeached yet? Surely his rap-sheet warrants it?
On a slightly unrelated note: Where do you guys find the time to come up with such well-written and well-researched posts everyday?
According to Judge Luttig, the government’s decisions to detain Padilla as an enemy combatant and then indict him:
{emphasis is, of course, mine).
A lawyer I know who has worked with him before says, no, or at least that it’s not apparent if so — she’s says she’s pretty sure that he’s “New York Jewish.” Though I’m guessing Abhi is probably right.
Did anyone else notice that both John Dean — who knows a thing or two about such matters — and Bruce Fein, who was Reagan’s deputy AG, says that Bush has now become the first President to admit to an impeachable offense?
People are starting to talk at least.
First of all thank you. The answer is that most of us are single and do this to fill the void in our lonely lives. Someday I am sure my efforts on SM will be sabotaged by an amorous young thing. Then I will just post crap 🙂
This was the right time for the wiretapping scandal to hit Bush. Most Americans are too busy shopping for Christmas and being nasty with each other.
Or perhaps he’s interpreting the law as he always has in the past. I disagree with the views judges like Luttig and Alito espouse; but I don’t think they are out to erode civil liberties like the Bush administration. Simply they are ultra conservative people as is their right.
DP – OK, so I thought it was obvious that I was joking, but maybe not. For the record, I was more or less kidding when I suggested that Judge Luttig is so bitter (and therefore unprofessional) that he would consciously stick it to the administration because he was passed over for a job, just as he probably wouldn’t have become any more of a cheerleader if he had in fact been nominated — although that said, the possibility that there might be an appearance of that is why three of the leading legal ethics scholars in the country have suggested that judges should recuse themselves under such circumstances. I was just poking at a delicious irony, but it’s actually not a ridiculous thought.
Still, there is something noteworthy about Judge Luttig’s opinion in this case. His opinion on the merits in the Padilla case was rather deferential to the administration, overly so in the eyes of some critics. He certainly was more deferential than the 2nd Circuit was in the very same case, before the Supreme Court transferred it. Luttig also wrote a dissenting opinion (pp.20-39 in the PDF) in one of the Moussaoui appeals that was similarly quite deferential to the administration’s national security claims.
Of all the federal judges in the country who might look upon the administration’s claims about national security with some skepticism, one wouldn’t have predicted Luttig to be one of them — he hasn’t been the most civil-liberties-protective judge in the handful of cases that have come before him so far….
Judge Marilyn Hall Patel married in. Andrew Patel is more puzzling.
Maybe he had an Indian step-dad?
From the picture of Andrew Patel, he looks in his late fourties, so I would be really surprised if he had a Patel step-Dad. Intriguing !!!
-shrug- The possibilities are endless. He could have an Indian step-dad or his dad might’ve been 3/4 Kashmiri, M.Pradeshi or U.Pradeshi or something and 1/4 Patel(I don’t know if Patels are very common in Kashmir,UP or MP). This looks like a secret he’ll carry with him to his grave, like some sort of Indian superhero and his secret identity.
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