4th Circuit Appellate Judge Luttig Grows a Pair

[ms_ann_thrope]

J/K, I never thought that he didn't have a pair, but I simply must give him props for calling the administration on their BS with regard to the Padilla case and blatant attempt to keep the appeal from getting before the Supreme Court.
Article here.

Unless he only did this cos he's pissed that Alito got the SCOTUS nomination instead of him, then that would be petty... Otherwise this is awesome. Muah hah hah.

(I take a special interest in all things Padilla because I had to 'represent' Hanft for this case in Moot Court)

[D. Scarlatti]

Here's the opinion: Padilla v. Hanft.

[T]the government’s actions since this court’s decision issued on September 9, culminating in and including its urging that our opinion be withdrawn, together with the timing of these actions in relation both to the period for which Padilla has already been held and to the government’s scheduled response to Padilla’s certiorari petition in the Supreme Court, have 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.

Naughty Bush! It's not nice to fuck with the Article III courts.

Absent explanation, our authorization of Padilla’s transfer under the circumstances described and while the case is awaiting imminent consideration by the Supreme Court would serve only to compound the appearance to which the government’s actions, even if wholly legitimate, have inescapably given rise.

Translation: This court won't be a party to your apparent scam.

Bush and the gang are taking up the hoop from every direction these days. Looks good on 'em too.

[Dingfod]

If he were actually turned over to the regular court system, wouldn't they be obligated to release him due to him being denied the right to a speedy trial, you know, that right afforded all in that pesky thing called the Constitution of the United States?

[D. Scarlatti]

I suspect that, since Padilla is still bound by the rulings of the Fourth Circuit, which suspend several of his claimed constitutional rights, the speediness requirement wouldn't start to toll until he was actually transferred to Florida under the new indictment (which is comprised of different and lesser charges).

[Dingfod]

Do you agree that they should be able to arbitrarily suspend a citizen's constitutional rights? That's the part that bothers me most. I know Lincoln suspended many Constitutional rights, affecting at least Amendments I, III, V, VI, and X, and overstepped executive powers in many ways, but the nation was actually in a declared war at the time, unlike now. They can call it a war if they want, but Congress has yet to make an official Declaration of War as is required of them by the Constitution. If nobody is going to abide by that document, why have the damn thing?

[D. Scarlatti]

Except the Fifth Amendment's exception for detaining persons isn't limited to times of war, it's times of war or public danger. And in September, 2001, Congress gave the President the power "to use all necessary and appropriate force against those ... persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Padilla actually won on his first go-round with the Fourth Circuit, because he successfully distinguished his case from the Supreme Court's decision in Hamdi v. Rumsfeld, in which a similarly situated U.S. citizen was similarly detained. Padilla argued that Hamdi didn't apply because Hamdi was actually captured on the "battlefield" in Afghanistan, whereas Padilla was nabbed getting off a flight from Zurich at O'Hare airport, that is, on U.S. soil.

Of course there's a bit more to it than that, but the bottom line is the Fifth Amendment provides that "public danger" exception, and obviously the government can try and milk that for all it's worth.

[D. Scarlatti]

The Washington Post is "baffled" by J. Michael Luttig and Co.:

Mr. Padilla is being held by the military against his will, against the military's will and against the will of the president who ordered him locked up. He cannot defend himself in the civilian justice system as a consequence of an order by the very court system to which he turned in an effort to vindicate his rights as a U.S. citizen.

It is true Padilla seems like a pawn in a separation of powers battle between the executive and the judiciary.

Mr. Padilla in Captivity

[ms_ann_thrope]

Originally Posted by D. Scarlatti

The Washington Post is "baffled" by J. Michael Luttig and Co.:

Mr. Padilla is being held by the military against his will, against the military's will and against the will of the president who ordered him locked up. He cannot defend himself in the civilian justice system as a consequence of an order by the very court system to which he turned in an effort to vindicate his rights as a U.S. citizen.

It is true Padilla seems like a pawn in a separation of powers battle between the executive and the judiciary.

Mr. Padilla in Captivity

It's true, sucks to be him, or anyone else detained as an "unlawful combatant" and/or otherwise held under the very broadly-worded AUMF.

But citizens being used as pawns in separation of powers battles is hardly new... Terri Schiavo immediately comes to mind.

I still say good on Luttig for refusing to let his court be pimped a second time. Wish he would have included this quote in his opinion, though: "There's an old saying in Tennessee - I know it's in Texas, probably in Tennessee - that says, fool me once, shame on - shame on you. It fool me - you can't get fooled again."

[ms_ann_thrope]

Aaaand... SCOTUS overrules him today.

Sort of. I mean, I guess they might still review Padilla's original challenge to his military detention someday, but seems less likely now.