Washington Post
December 21, 2005
by Fred Barbash

A U.S. appeals court, acting in the case of alleged "enemy combatant" Jose Padilla, today rejected the administration's move to avoid another Supreme Court review of its powers of detention, blasting the government in unusually blunt terms for its behavior in the case which, it said, may have significantly damaged "its credibility before the courts."

The decision by the 4th U.S. Circuit Court of Appeals in Richmond stems from the administration's actions last month just as the Supreme Court was set to consider whether to review the Padilla case.

At that time, after holding him without charges for three-and-a-half years, it indicted Padilla on criminal charges and asked the 4th Circuit to have him moved from a military prison to a civilian prison, thus mooting the issues the Supreme Court might have reviewed on the question of detention without formal charge.

On top of that, the government asked the appeals court to withdraw the opinion it issued that might have been considered by the justices, even though that opinion upheld the administration's position on detention.

Today, the panel rejected both requests in an opinion written by J. Michael Luttig, a conservative often mentioned on the administration's short list for the U.S. Supreme Court.

Its actions revive the possibility that the high court will review the Padilla case and at least give the justices the opportunity to review it, which the administration sought to avoid.

The appeals court opinion reflected a tone of anger that is rare for a federal court addressing the United States government, particularly in a matter of presidential authority.

Luttig said the government's actions created the appearance "that the government may be attempting to avoid" Supreme Court review in a matter of "especial national importance."

He also suggested that the government's actions in the Padilla case may possibly have had negative consequences for "the public perception of the war on terror" and "also for the government's credibility before the courts in litigation ancillary to that war.

" . . . We cannot help but believe that those consequences have been underestimated" by the government, he added.

For "as the government must surely understand," it has left "the impression" that Padilla may have been held for these years "by mistake, an impression we would have thought the government could ill afford to leave extant."

The chain of events leading to today's ruling began more than three-and-a-half years ago when the government seized Padilla in an airport claiming he was plotting a "dirty bomb" attack in the United States in connection with al Qaeda. It never charged him with such a plot in any court, but transferred him to a brig in Charleston, S.C., where he was denied a lawyer until a threatened Supreme Court intervention.

Padilla's lawyers appealed twice, losing on technical grounds at the Supreme Court in 2004 and losing on substantive grounds in the 4th Circuit in September. That opinion was also written by Luttig.

Padilla appealed again to the Supreme Court, but days before the administration's response to the justices was due, the administration indicted him on charges unrelated to the so-called "dirty bomb" plot, asked that he be transferred to a civilian cell in Florida and advised the Supreme Court that the case was now moot and did not require any ruling.

Subsequently, to guarantee that the Supreme Court would stay out of the case, it asked the 4th Circuit to wipe out its September ruling upholding the power of the president to detain Padilla.

The circuit responded today. "If the natural progression of this significant litigation to conclusion" is to occur "under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States," Luttig wrote.

The government's behavior, he said, has "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court. We are not in a position to ascertain whether behind this appearance there is the actual fact, because the government has not explained its decisions either publicly or to the court."

Various reports of the government's decision-making process have appeared in the news media, Luttig noted, and "it should go without saying that we cannot rest our decisions on media reports of statements from anonymous sources." Besides, "the information that the government would provide to the media . . . it should be prepared to provide to the court."

In any case, Luttig wrote, none of the government's reported concerns about the Padilla case "would justify the intentional mooting of the appeal of our decision to the Supreme Court after three and a half years of prosecuting this litigation and on the eve of final consideration of the issue by that court."

The government, he said, "cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum . . . it wishes to be bound."

On an "issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case," Luttig said, rather than by "an eleventh-hour transfer" under "circumstances that would further a perception that dismissal may have been sought for the purpose" of avoiding the high court.

The government's behavior, Luttig said in conclusion, has "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 long time, that the President possesses the authority to detain enemy combatants who enter 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," he ended, "it is difficult to imagine what that objective would be."