c.sartwell at verizon.net
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
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
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
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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