Man’s Better Hells Angels

by digby

It appears that Judge Michael Luttig learned the hard way that believing certain men can be entrusted with extra-constitutional powers because they are “good” is foolish. You’d think that a member of the “Federalist Society” would have known better since the main author of The Federalist Papers made it pretty explicit that this was the reason for the three separate branches of government. Luttig got burned in the worst possible way; he put his reputation on the line and they used it like toilet paper and then threw it away. And predictably they are now busily smearing his character:

When the opinion was issued on Sept. 9, Judge Luttig delivered a coup: a unanimous opinion, written by himself, declaring that the president’s powers to detain those he considered enemy combatants apply anywhere in the world, including the U.S.

Judge Luttig, according to a person familiar with the court proceedings, put his own credibility on the line, drawing on his own experience in national-security law and confidence in Bush administration officials he knew. He argued to his colleagues that the government wouldn’t have sought such extraordinary powers unless absolutely necessary, this person says.

Then, in November, the administration suddenly announced that it didn’t consider Mr. Padilla an enemy combatant any more and would charge him in a regular federal court. The move came just two days before the government’s deadline to submit briefs to the Supreme Court, which was weighing an appeal of the Fourth Circuit’s September decision.

A person familiar with the judge’s thinking says it’s evident he felt the government had pulled “the carpet out from under him.” In an interview yesterday, Judge Luttig said, “I thought that it was appropriate that the Supreme Court would have the final review of the case.”

Attorney General Gonzales offered no explanation for the move, but critics accused the government of gaming the court system. By making the Supreme Court appeal moot, the government could avoid a possible reversal at the nation’s highest court while preserving the favorable Fourth Circuit ruling.

Instead of granting what the government considered a pro forma request to transfer Mr. Padilla to civilian custody, Judge Luttig ordered the parties to submit arguments over the question. On Dec. 21, Judge Luttig delivered a judicial bombshell: a carefully worded order refusing to move Mr. Padilla until the Supreme Court decided what to do. The order all but accused the Bush administration of misconduct.

“The government’s abrupt change in course” appeared designed “to avoid consideration of our decision by the Supreme Court,” Judge Luttig wrote. The government’s actions suggested that “Padilla may have been held for these years…by mistake” and, even worse, that the government’s legal positions “can, in the end, yield to expediency.” Such tactics, Judge Luttig warned, could exact a “substantial cost to the government’s credibility before the courts.”

A furious Bush administration asked the Supreme Court to overrule the Fourth Circuit. The ruling “second guesses and usurps both the president’s commander-in-chief authority and the Executive’s prosecutorial discretion in a manner inconsistent with bedrock principles of separation of powers,” Mr. Clement, the solicitor general, wrote.

The Supreme Court agreed to let Mr. Padilla move — he is now in a Miami jail — but the administration’s strategy of funneling war-powers cases to the Fourth Circuit was in tatters.

“Luttig’s parting shot as a judge may be the most defining opinion that he’s written,” says A.E. Dick Howard, who taught Judge Luttig at the University of Virginia School of Law and has been his friend since. Prof. Howard says the opinion reminds him of a line from Shakespeare’s “Macbeth”: “Nothing in his life/ Became him like the leaving it.”

People familiar with Judge Luttig’s thinking say he knew his condemnation of the administration would bring a personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary — and the view that judges are on “our team” or “their team.”

People close to the Bush administration see it differently. They dismiss Judge Luttig’s opinion as a judicial tantrum, noting that it came after he was passed over three times for a Supreme Court position. President Bush nominated Judge Roberts, Harriet Miers (who withdrew) and Judge Samuel Alito.

Welcome to our nightmare, Judge.

And then, of course, we find out just today that the government has been lying through its teeth about its illegal wiretapping when they said it was carefully targeting to only Al Qaeda suspects making calls to or from a foreign country. Basically they’ve been gathering information about every American’s telephone and email habits. What they’ve done with all that information we do not know.

This is the same government that Michael Luttig told his fellow judges on the fourth circuit could be trusted because they would never do such things unles they absolutely had to … the same government that turned around and punked Michael Luttig by doing an end run around the Supreme Court which precipitated him leaving the court.

This is not an abstract argument anymore. It’s not just about what might happen if we slide down the slippery slope and somebody really bad takes power and uses these powers to do bad things. The people in power right now are doing bad things and lying about it, as Michael Luttig, one of their own, found out personally. They are the reason the Bill of Rights were written in the first place.

Look for Karl Rove and his band of media sycophants to start agitating for the Democrats to lay off this issue again because it will make them look weak on terrorism. Everyone needs to start asking themselves why Karl would be warning Democrats not to do something that he believes will benefit him.

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