The New York Times reports on the Jose Padilla case:
In denying the administration’s request, the three-judge panel unanimously issued a strongly worded opinion that said the Justice Department’s effort to transfer Mr. Padilla gave the appearance that the government was trying to manipulate the court system to prevent the Supreme Court from reviewing the case. The judges warned that the administration’s behavior in the Padilla case could jeopardize its credibility before the courts in other terrorism cases.
What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who in September had provided the administration with a sweeping court victory, saying President Bush had the authority to detain Mr. Padilla, an American citizen, indefinitely without trial as an enemy combatant.
William Rehnquist died on September 3, 2005 and the Bush administration seriously considered replacing him with a member of the Fourth Circuit, J. Michael Luttig. It was in that context that the court ruled in the administration’s favor back in September. But on October 3rd, Bush passed over Luttig for a second time (the first being when he selected John Roberts to replace Sandra Day O’Connor), and selected Harriet Miers. One can only imagine the level of outrage and disappointment felt by Michael Luttig when his lifelong ambition to be appointed to the highest court in the land went up in smoke and a judicial midget was selected in his stead. And when the Harriet Miers’ nomination had to be withdrawn and Luttig received an unexpected third opportunity to be named to the Supreme Court and he was passed over again? I’m sure it did not sit well. Yesterday, he got some revenge.
In the opinion on Wednesday, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government’s suggestion that it vacate the September decision upholding Mr. Padilla’s detention for more than three years in a military brig as an enemy combatant.
Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to the government’s requests because that would compound what was “at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court.”
Judge Luttig wrote that the timing of the government’s decision to switch Mr. Padilla from military custody to a civilian criminal trial, just as the Supreme Court was considering the issue of the president’s authority to detain him as an enemy combatant, had “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.”
When you aren’t bucking for a promotion it is a lot easier to tell truth to power. And Luttig, with nothing left to lose, sounds a bit like Michael Moore:
Judge Luttig said the government might not have fully considered the consequences of its approach, “not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation.”
He said the government “must surely understand” that it has left the impression that Mr. Padilla may have been held for more than three years by mistake.
To understand how weak the case against Jose Padilla is, it pays to go back to the time of his transfer from police to military custody and to see how quickly the press realized they were being fed a line of bull. Take a look at this piece from Time Magazine from June 14, 2002.
But as the (not quite radioactive) dust settled on Ashcroft’s dramatic announcement, some began asking not only why Mr. Padilla, a U.S. citizen, was being held in a Navy brig as an “enemy combatant,” but also why he was dominating America’s headlines — and its nightmares. Within hours of Ashcroft’s announcement, administration officials were pointing out that Padilla had no radioactive material or any other bomb-making equipment. Nor had he chosen a target, or formulated a plan. And while his connections with al-Qaeda operatives were never in doubt, he suddenly began to look a lot more like the accused shoe-bomber Richard Reid (i.e. another disaffected ex-con from the West desperate to get in with al-Qaeda) than like the sophisticated professionals who put together September 11.
Three and a half years later the case against Padilla looks even worse:
In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan.
We might recall that 2002 was the year of the color-coded terrorism alert. That trend reached its apogee just prior to the war when Tom Ridge issued his famous DuctapeFatwa and told us to go buy duct tape and plastic sheeting.
“Obviously, I think there’s been some political belittling of duct tape,” he said, referring to the suggestion Americans buy plastic sheeting and tape to seal a safe “internal room” in their homes from a biological or chemical attack.
“But the Centers for Disease Control and professionals will tell you that duct tape and a secure room and a couple of gallons of water to tide you over for a day or two is precisely what you might have to do in the event something occurs,” Ridge said.
Jose Padilla may have been a bad guy with bad intentions. Or he may have just been a pawn in a greater scheme to scare the living shit out of Americans and get us to support invading Iraq.
Tom Ridge revealed the truth about this campaign of fear-mongering through terror alerts not too long ago:
As time goes by more and more Republicans begin to sound like Michael Moore and Michael Moore begins to sound a lot more like a mainstream outraged American.
