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Judge Luttig’s Opinion and CBS’ Andrew Cohen’s Histrionics

Tuesday, December 27, 2005  |  posted by Hugh Hewitt
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Here is Judge Michael Luttig’s most recent opinion in the Padilla case. The Department of Justice had attempted to end the litigation involving Jose Padilla by indicting him and transferring jurisdiction over Padilla to the criminal justice system and away from the military. The government’s request to move Padilla “from military custody in the state of South Carolina to civilian law enforcement custody in the state of
Florida [was] denied.”

On September 9, 2005, The Fourth Circuit, Judge Luttig writing, had issued a decision in the case. The key holding:

The exceedingly important question before us is whether the President of the United States possesses the authority to detainmilitarily a citizen of this country who is closely associatedwith al Qaeda, an entity with which the United States is at war;who took up arms on behalf of that enemy and against our countryin a foreign combat zone of that war; and who thereafter traveledto the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.

We conclude that the President does possess such authority
pursuant to the Authorization for Use of Military Force Joint
Resolution enacted by Congress in the wake of the attacks on the
United States of September 11, 2001.

Padilla is seeking Supreme Court review of the decision. Had the government’s motion to transfer Padilla to civilian control been granted, some observors think that the case would have been mooted and the cert petition dismissed, with the Fourth Circuit’s decision as the final word on the matter, and persuasive though not controlling precedent on most future similar cases if they arise.

That result wasn’t guaranteed, as the SCOTUS would have had the final word on the subject anyway, but Judge Luttig’s refusal to grant the transfer request certainly underscores the Fourth Circuit’s desire that SCOTUS take up the case.

Judge Luttig’s opinion has been called “canny,” and many Adminsitration critics are reading it as a rebuke to the government’s attempted “manipulation” of the courts.

CBS’ Andrew Cohen, for example, works himself up into a frenzy of celebration, intepreting Luttig’s opinion like a rosetta stone, revealing deep suspicion by even long time allies of the president on the bench:

[Luttig’s] harsh words ought to serve as a warning to all of his legal and political friends in power: the courts cannot and will not be used any longer as mere tools to achieve the particular purposes of an administration, even one that is fighting at home against terrorists, real or perceived. Four years ago, the federal courts bent over backward to defer to the bald assertions made by Justice Department lawyers in terror law cases. If those days weren’t already over, they are now: Judge Luttig just said so more directly and succinctly than any of his colleagues have yet to date.

Read Judge Luttig’s opinion and then read Cohen’s overwrought analysis.

Cohen’s hyperactive imagination quotes but fails to credit the far more plausible explanation for the Luttig opinion –offered, surprisingly, in the Luttig opinion:

The government 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 as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.

Judge Luttig will not allow the DOJ to cut-and-run with a Fourth Circuit win, even if that isn’t what the DOJ intended to do. The SCOTUS can, by denying cert, renew for the DOJ and DOD the opportunity to transfer Padilla, or it can grant cert and dive into the crucial issue of Padilla’s detention without trial with the new Chief Justice and the new Associate Justice on the SCOTUS.

But when Cohen asserts in his lead paragraph that Judge Luttig’s opinion “launched an extraordinarily candid rearward attack on the credibility and integrity of White House and Justice Department lawyers,” provides no direct quote from the Luttig opinion. Cohen can’t because Luttig launched no such attack. As Steve Vladeck wrote at PrawsBlawg, “[a]t the very least, the Fourth Circuit is loath to take a hand at resolving the mootness issue before the Supreme Court does.” The minimalist summary of Luttig opinion is not the only interpretation offered by Vladeck, who also wants to see a much more caustic rebuke in the opinion than is actually there, but it is a far more plausible one than Cohen’s overheated exclamations:

“This is not a happy judge. This is not a trustful judge. This is a judge who believes that the executive branch is failing to show the proper respect to the judicial branch and to the justice system itself.”

My take is that Judge Luttig is a serious and very smart judge who believes his opinion on the underlying controversy will be persuasive for a majority of the newly arranged SCOTUS and that he’s not about to cooperate in allowing the moment to pass because some DOJ types are weak in the knees. Because Judge Luttig has served in both the White House and the Department of Justice, he knows very well how the decisions are made, and how many layers of lawyers there are between the folks handling the particulars of the Padilla matter and the president. If you want to know what he thinks about the case, read his opinions, not the “analysis” offered by agenda journalists at CBS.

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