Friday, December 23, 2005

WSJ on 4th Circuit Luttig's Padilla decision of December 22, 2005

WSJ editorializes on the unanimous three judge decision authored by Judge Luttig, 4th Circuit, flatly rejecting the government's request to vacate the judgment and transfer Padilla to the ordinary criminal justice system, here:

Padilla Put-Down
Forcing the White House to defend its own convictions.

Friday, December 23, 2005 12:01 a.m.
Wall Street Journal (editorial)

The Bush Administration is sometimes its own worst enemy when it comes to fighting for the tools it needs in the war on terror.

In that category we'd put the President's failure to defend the need for aggressive interrogation of foreign terror detainees, culminating in his recent cave-in on Senator John McCain's "torture" amendment. Signing up for a six-month extension of the Patriot Act, rather than sticking by his demands for long-term renewal, could turn out to be another. Last month's decision to abandon the enemy-combatant case against Jose Padilla in the U.S. Supreme Court is a third example.
Fortunately, in the Padilla case, an appeals court is now forcing the Administration to show the courage of its own convictions. In an extraordinary ruling issued Wednesday, a unanimous three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia, rejected the Department of Justice's request to vacate its earlier ruling, which said that the President "unquestionably" has the right to detain U.S. citizens who happen to be enemy combatants--a right the Administration has said repeatedly is indispensable to fighting this war.

It also rejected the Administration's request to transfer Padilla from military to civilian custody so that he could answer criminal charges brought last month in a federal court in Miami. The case now continues its course to the Supreme Court, which can either hear the case (as expected) or let the Fourth Circuit's ruling stand.

This week's Fourth Circuit opinion is scathing, and a Washington attorney of our acquaintance says, "I have never seen that kind of language addressed to the government." Writing for the court, Judge Michael Luttig says that the Administration's actions leave the impression that Padilla has been held "by mistake" and give the "appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." This case "presents an issue of such especial national importance as to warrant final consideration by" the High Court.
We'd agree that there is a vital constitutional principle at stake here, and we hope the Supreme Court takes it--despite the government's apparent ambiguity about the case. Over the past three and a half years, Padilla has become a liberal icon--an "innocent" man who has been held "illegally." The public debate has been largely about one man's rights and not about the right of the rest of us to be protected from enemy attack.

In its 2004 Hamdi decision, the Supreme Court upheld the authority of the President to detain enemy combatants, including U.S. citizens. The difference between Hamdi and Padilla is that the American in the former case was captured on a battlefield in Afghanistan and the citizen in the latter was picked up in the U.S. Given the nature of modern technology and terrorist strategy, where the U.S. homeland is a major target of attack, the enemy's location is an illusory distinction.

Hamdi was decided 5-4, with then Chief Justice Rehnquist and Justice Sandra Day O'Connor in the majority. Predicting a Supreme Court outcome is always tricky, but it's hard to imagine Chief Justice John Roberts and, presumably, nominee Samuel Alito reaching a different conclusion.

In any event, the country and the Bush Administration could both use some clarity on these issues. Critics of the Bush strategy shout "illegal" at every turn, even though the Administration has usually prevailed in court. We're glad the Fourth Circuit is forcing the Administration to defend the Presidential authority on national security that we've long believed is vital to protecting Americans.

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