TRIVIALIZING TERROR….Remember Jose Padilla, the “dirty bomber”? Last September, in a major victory for the Bush administration, the 4th Circuit Court ruled that the government could detain Padilla in a military brig indefinitely without charges even though he was a U.S. citizen arrested on U.S. soil. It was an expansive ruling that gave the administration broad powers to treat suspected enemy combatants in virtually any way they wanted.
This should have made the government happy, right? Unfortunately, there was one hitch: this being the United States, wartime or no, Padilla could appeal his detention to the Supreme Court, and there was a chance that the Supremes might not be as accomodating as the conservative 4th Circuit.
So the Justice Department came up with a brainstorm: at the last minute, it asked the 4th Circuit to vacate the government’s big victory and transfer Padilla to the civilian court system, where they planned to charge him not with being a dirty bomber, not even with planning to blow up apartment buildings, but with a humdrum variety of low-level conspiracy charges.
The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued on the government?s representation that Padilla?s military custody was indeed necessary in the interest of national security, the government determined that it was no longer necessary that Padilla be held militarily.
….In a plea that was notable given that the government had held Padilla militarily for three and a half years and that the Supreme Court was expected within only days either to deny certiorari or to assume jurisdiction over the case for eventual disposition on the merits, the government urged that we act as expeditiously as possible to authorize the transfer [to a civilian court]. The government styled its motion as an ?emergency application,? but it provided no explanation as to what comprised the asserted exigency.
The opinion, which denied the transfer and sent the case to the Supreme Court, was written by conservative darling Michael Luttig, who until today was considered a possible contender for a spot on the Supreme Court. Now, probably not. In fact, he’s probably not even a conservative darling anymore.
It’s worth reading Luttig’s whole opinion. It’s not very long and it pretty clearly indicates that Luttig and his colleagues were seriously pissed. They want to know why the government claimed it was absolutely essential to national security that Padilla be detained indefinitely and then suddenly changed their minds without so much as an explanation. They also want to know why this change of heart came only two business days before Padilla’s appeal was scheduled to be filed with the Supreme Court.
And that’s not all. They want to know why the government provided them with a completely different set of facts than they provided to the civilian court in Miami. They want to know why the government provided more information about the case to the media than they did to the court. And finally, they want to know why the government did all these things even though they must have known that these actions rather obviously undermined their own public arguments about the importance of the war on terror:
They 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 expediency with little or no 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, 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.
In other words, if the government’s own actions make it clear that they consider the war on terror to be little more than a game designed to expand presidential power, how can they expect anyone else to take it seriously either?
It’s a good question. No wonder Luttig was pissed. He was one of the ones who thought the Bush administration took this stuff seriously.