Yesterday a panel of the Fourth Circuit denied the government’s motion to authorize the transfer of Jose Padilla from the custody of military authorities to that of civilian law enforcement, pursuant to his recent indictment by a Florida grand jury, and refused to vacate its September ruling in favor of the president’s authority to hold Padilla militarily. Today the New York Times calls this a “sharp rebuke,” a “startling” action by judges who were “clearly angered” by the administration’s change of course in its treatment of Padilla. The Washington Post covers the story similarly, relying on “legal experts” who say “a previously friendly appellate court was now casting a more skeptical eye toward the Bush administration’s terrorism arguments.” Along similar lines, legal commentators I’ve seen in e-mail traffic seem universally to read the opinion by Judge J. Michael Luttig as “dripping with acid,” or bitterly angry, or contemptuous of the administration’s legal arguments.
Readers can click on the first link above (it’s to a small PDF file) and read for themselves. My own reading of Luttig’s opinion is quite different from all of the above. If there is any peevishness in Luttig’s prose, it is that of a coach who is giving his players the fabled halftime locker-room speech when they’ve begun to show exhaustion or a lack of nerve while still holding their lead over their opponents. “Buck up, me boy-ohs. So far you’re winning! The argument you’ve made so far has been sound; we’ve accepted it here at the Fourth Circuit; and we think it will be victorious at the Supreme Court as well, either on the merits or by a denial of certiorari leaving our circuit ruling in place.” Yes, Luttig remarks on the appearance the government has given, that it fears Supreme Court review, and chastises the administration for taking risks with its own credibility in the courts. But this is the finger-wagging of a friend who wishes the administration well in the war on terror, not the table-pounding of a suddenly converted critic of the administration’s arguments.
If anything, Luttig is a little carried away with zeal to see the government press its case to a victorious conclusion in the Supreme Court. After all, his opinion reduces Jose Padilla to a pawn in an ongoing constitutional argument. From the perspective of a narrow focus on the fate of Padilla, it is the government that is solicitous of his rights and his welfare now, as it seeks to transfer him to the much more tender mercies of the civilian criminal justice system. Judge Luttig seems to have forgotten about the individual in the center of this maelstrom.