The biggest legal news of the week was a decision yesterday by Judge Michael Luttig of the Fourth US Circuit Court of Appeals in Richmond. The Fourth is considered the most conservative of the Court of Appeals, and Luttig the most conservative of judges. He makes Roberts and Alito look liberal, which is why the President thought it would be too hard to get him confirmed to the Supreme Court. It must have thus shocked the Bush administration that he sharply rebuked their handling of the Padilla case. If you’ll recall, over three years ago the government accused American CITIZEN Jose Padilla of being a potential “dirty bomber.” He was stripped of his rights as a citizen under the U.S. Constitution and was thrown into jail as an enemy combatant based upon the secret evidence of the Administration. The assertion was that he had no rights. His lawyer, Andrew Patel, appealed his status and it was headed for the Supreme Court after a brief layover in the Fourth. At this point (over three years into the ordeal) the government changed its mind. To paraphrase the Justice Department’s logic, “let’s just change his status and charge him with other crimes so that the existing case cannot be appealed to the Supreme Court.” Not so fast, said Luttig. The Christian Science Monitor reports:

The administration’s actions create “an appearance that the government may be attempting to avoid consideration of our decision [in the Padilla case] by the Supreme Court,” writes Judge J. Michael Luttig in a 13-page order released on Wednesday.

“We believe that the issue [in Padilla’s case] is of sufficient national importance as to warrant consideration by the Supreme Court,” Judge Luttig writes.

The judge went on to criticize the government for underestimating the damage its actions were causing to public perceptions of the war on terror and the government’s credibility before the courts.

“While there could be an objective that could command such a price as all this, it is difficult to imagine what that objective might be,” Luttig writes.

The rebuke carries extra sting, analysts say, because of who delivered it. Luttig is one of the nation’s most conservative appeals court judges and was on the short list of White House favorites for each of the two recent vacancies on the Supreme Court.

It has been a real bad week for Civil Libertarians, hasn’t it? It seems that every time I turn on the television there is news of one of my Constitutional rights is being eroded. Earlier this week Newsweek asked, “why have [Americans] reacted so insipidly to yet another post-9/11 erosion of U.S. civil liberties?” This question was posed in reference to the revelation of illegal wiretaps. I point this out because these two issues are inextricably linked. A U.S. citizen who is spied upon without a warrant can then be labeled an enemy combatant and locked up without any rights, all on the word of the Bush Administration. Why then are they jonesing so bad for a Patriot Act renewal? This method is way more powerful.

Suddenly, terror suspect Jose Padilla seems a lot more dangerous to the Bush administration.

It has nothing to do with his suspected involvement in Al Qaeda bomb plots, analysts say. Rather, the administration worries that the US Supreme Court might agree to hear Mr. Padilla’s case and decide one of the most pressing constitutional issues in the war on terrorism. And by all appearances, government lawyers think they might lose.

The issue: Does President Bush have the power as commander in chief to order the open-ended military detention of US citizens that he deems enemy combatants?

It is not a minor matter. The claim of broad presidential power is a cornerstone of the administration’s effort to restore what it views as the proper level of executive authority after decades of erosion following the Watergate scandal. Such robust, independent presidential power is said to be critical to safeguarding the country from a repeat of the 9/11 terror attacks. [link]

Patel also had choice words for the government:

“Though its factual allegations have changed with the prevailing winds, the government’s actions have been strategically consistent,” wrote Padilla’s attorneys, Andrew Patel and Donna Newman. “At every turn, the government has sought to manipulate the federal courts’ jurisdiction and evade judicial review…” [Link]