Luttig Rebukes Bush

Jacob Sullum has the scoop on the 4th Circuit's rebuke of the Bush administration over its attempt to evade the Supreme Court.

The 4th Circuit case involves Jose Padilla, a U.S. citizen who was arrested at Chicago's O'Hare International Airport in 2002. Declaring that the arrest had foiled a plan to detonate a radiological bomb in the U.S., the government soon transferred Padilla to military custody, where he has remained ever since.

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In a September decision, the 4th Circuit concluded that Congress' post-9/11 resolution had given the president the authority to keep Padilla in military custody, assuming the allegations against him were true. But two months after this decision, the Bush administration unveiled a criminal indictment of Padilla, asked the 4th Circuit for permission to transfer him to civilian custody, and said the court's ruling should be withdrawn because it was no longer necessary. Taken aback at the government's reversal, the court said no.

In an opinion by J. Michael Luttig, the three judges who had upheld the president's detention authority said they were disturbed by the appearance that the government was trying to avoid Supreme Court review. They also noted that Padilla's indictment, which charges him with conspiring to support terrorism and commit violence abroad, "made no mention of the acts upon which the government purported to base its military detention of Padilla."

Luttig wrote that by keeping Padilla in a brig for three and a half years without trial, then deciding to try him after all once a court approved the detention, the government "left the impression that Padilla may have been held for these years, even if justifiably, by mistake." By pressing the claim that the president has the authority to indefinitely detain anyone he labels an enemy combatant and then seeming to back away from that claim, Luttig said, the government left the impression that "the principle in reliance upon which it has detained Padilla...can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."

Sullum writes that we're witnessing a backlash as a result of President Bush's disregard for other branches of government, and that the courts may be growing more skeptical of the executive. This may well be true. However, I think there's an important point here that should not be overlooked. Mr. Sullum insinuates that if even Michael Luttig, who was and may still be on Bush's short list of SCOTUS nominees, rebukes the president, then Mr. Bush must certainly be guilty of abusing his own powers.

We have a court system in place specifically to check the authority of both the executive and legislative bodies, just as the latter branches are responsible for checking the former. What should be emphasized here, I think, is not the idea that Bush is some wanton villain eager to corral innocent Americans (and I am not suggesting this is what Mr. Sullum implies), but that Judge Michael Luttig - a conservative who draws the ire of liberal ideologues - is committed to adhering to the rule of law.

Readers of this blog know that I chafe at the idea of "liberal" vs. "conservative" judges, as both labels suggest that all judges are beholden to a particular party that will ultimately expect them to apply its agenda in the courtroom. But the point is this: Liberal judges are far more likely to view the Constitution as a "living document," open to interpretation suitable to today's pet causes of the Left, than are conservative ones, who, as we've seen in this case, are beholden to the law - even if their decisions at times run counter to the wishes of their biggest fans.