Several readers have pointed my attention to the ruling that came down yesterday in the 4th Circuit barring the government from transferring Jose Padilla from military to civilian law enforcement custody. It’s a harsh rebuke of the administration’s legal tactics. And what caught my eye is that the author of the ruling is J. Michael Luttig, the darling of conservative jurisprudence and a top candidate for the Supreme Court.
As Jerry Markon puts it in the Washington Post, “In issuing its denial, the court cited the government’s changing rationale for Padilla’s detention, questioning why it used one set of arguments before federal judges deciding whether it was legal for the military to hold Padilla and another set before the Miami grand jury.”
Reading over the reportage of what happened yesterday, it seems clear that Luttig and the other two members of the panel were less perturbed about civil liberties issues per se (Luttig wrote the decision that allowed the government to hold Padilla indefinitely as an ‘enemy combatant’) than the administration’s cynical willingness to jump from legal argument to legal argument, from one set of facts to another, as the needs of the moment dictate.
