padilla column

Crispin Sartwell c.sartwell at
Mon Sep 12 14:04:07 PDT 2005

hi folks. i'm a syndicated columnist and polisci prof at dickinson  
college. i wonder what you may think of my column for this week,  
ripping luttig's decision in padilla v hanft. thanks, crispin

Martial Law
By Crispin Sartwell

The history of American constitutional interpretation boasts few  
moments that are more dangerous - and none that is more ludicrous -  
than J. Michael Luttig's September 9 decision in Padilla v. Hanft.
    Jose Padilla, you may recall, is an American citizen who was  
arrested as an al Qaeda operative when he re-entered the country on  
May 8, 2002. Ever since, he has been held in military detention as an  
"enemy combatant," and denied all the rights guaranteed by the  
Constitution, most obviously due process. He has never had the  
opportunity to respond to the charges against him.
     The Bush administration asserted its right to detain Padilla  
indefinitely, without charge or representation. It had this  
authority, it claimed, under the congressional resolution passed  
after 9.11 authorizing the administration to "use all necessary and  
appropriate force" in the war on terror.
    Judge Luttig, writing, sadly, for a unanimous 4th U.S. Circuit  
Court of Appeals, upheld Padilla's detention without qualification.
     Luttig is often mentioned as a possible Supreme Court nominee.  
He has been called "brilliant." The text of the decision, if nothing  
else, demonstrates that assessment to be (putting it gently) false.  
The opinion is not only an abrogation of the Constitution Luttig is  
sworn to uphold; it is a tissue of mind-numbing fallacies.
    The decision starts by baldly asserting Padilla's guilt,  
accepting at face value every accusation made against him. Luttig's  
argument is precisely this: since Padilla is guilty he will be  
prevented from giving any evidence of his innocence.
     This legal principle is obviously aconstitutional. But more, it  
is baldly circular: it assumes what it needs to prove. And as a  
practical matter, it creates a legal black hole. Once you tumble in  
you can by definition never emerge. To call this procedure "medieval"  
would be unfair to the Inquisition.
     The Constitution makes specific provisions for suspending habeus  
corpus, which ordinarily could be used to force the government to put  
Padilla on trial. But Congress has not suspended habeus corpus and  
the courts cannot suspend it.
     Thus, the decision usurps the authority of Congress by  
suspending habeus corpus (not to speak of due process) unilaterally,  
and abandons the authority of the judiciary by granting the executive  
branch a limitless judicial power for the length of an interminable  
war. Luttig, in short, makes a hash of the separation of powers, then  
eats it with evident relish.
     For precedent, Luttig's opinion relies most heavily on the  
majority opinion in Hamdi v. Rumsfeld , written by Sandra Day  
O'Connor. Yasser Hamdi, like Jose Padilla, is an American citizen who  
has been detained for years as an enemy combatant.  Indeed, Luttig  
writes that "we can discern no difference in principle between Hamdi  
and Padilla."
     But in the Hamdi decision, O'Connor wrote that the president's  
war powers and Hamdi's due process rights were both extremely  
important considerations. She acknowledged that what Yasser Hamdi had  
at stake was "the most elemental of liberty interests–the interest in  
being free from physical detention by one’s own government." "We  
therefore hold," she concluded, "that a citizen-detainee seeking to  
challenge his classification as an enemy combatant must receive  
notice of the factual basis for his classification, and a fair  
opportunity to rebut the Government’s factual assertions before a  
neutral decisionmaker."
     Notice that this is a completely general and precedent-setting  
conclusion which applies to all such cases. But Luttig, though he  
rests his opinion on O'Connor's, makes no mention whatever of her  
vindication of due process in the Hamdi case.
      It is worth mentioning that Antonin Scalia dissented from the  
majority in Hamdi's case - with John Paul Stevens concurring - on the  
grounds that Hamdi must be tried or released. Scalia's dissent is  
plain, scathing, and unanswerable.
     In any event, the majority opinion in Hamdi constrains Luttig in  
the plainest terms to grant Padilla some semblance of due process.  
There are only three known cases of American citizens held as enemy  
combatants: Padilla, Hamdi, and John Walker Lindh, who was eventually  
granted a criminal trial. But the de facto suspension of  
constitutional rights by Luttig entails that it is legitimate for the  
executive branch to hold anyone it pleases, secretly, without charge,  
for as long as it likes, on any grounds at all or on no grounds  
whatever. That in turn entails that, if the decision stands, we will  
never know how many people are thus detained, or where, or why.
     This is the very essence of arbitrary, tyrannical power as it  
was understood by the framers of the Constitution. The notion that  
Luttig might replace O'Connor - precisely, perhaps, as a reward for  
his colossal suspensions of liberty and rationality in the service of  
unchecked presidential power - is outrageous.
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