Fourth Circuit Smackdown

The Fourth Circuit today handed down a stunning rebuke of the Bush administration in the Padilla case. (Side note: his name doesn't rhyme with tortilla.)

For those who haven't been following, Padilla has been held by the Government with almost no access to lawyers on charges that we so super duper secret they couldn't even be revealed to the public, because he was such a terrible threat to national security.

Well, Dubya won in the Fourth Circuit, which held he did have authority to hold Padilla as an enemy combatant. Padilla obviously appealed to the Supreme Court, which was just about to decide whether to take the case. And then something funny happened. As Michael Lutting wrote:

The Government has held Padilla militarily for over three and a half years, steadfastly maintaining that it was imperative in the interests of national security that he be so held. However, a short time after our decision issued on the government's representation that Padilla's military custody was indeed necessary in the interest of national security, the government determined that it was no long necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement authorities and criminally prosecuted . . . For alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla.

So, let's see. Padilla's about to get his day in the Supreme Court, and then the Government decides, oh, whoops, he's not so bad after all, let's just charge him criminally. The Fourth Circuit didn't like this much: "The government cannot be seen as conducting litigation with the enormous implications of this litigation - litigation imbued with significant public interest - in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound."

And then the kicker:

[The government's actions] have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country . . . can, in the end, yield to expediency with little or no cost to its conduct of the war against terror - an impression we would have thought the government . . . could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

But then, are we to be surprised that the facts can change for the Bush administration? Recall, these are the people who once derided those who lived in a reality-based world. For them, facts can change. For them, well, what does it matter if a man was held on baseless charges (or, as Luttig so delicately put it, "by mistake"), because, hey, we can always change the facts to suit our purposes. Bush liked the Fourth Circuit's result, and presumably would rather have the opinion of a three-judge panel of the conservative Fourth Circuit than face full review before the Supremes, where he might run into a problem in the form of Souter, Breyer, Ginsburg, Stevens, and maybe even Kennedy.

If this is the society we live in - where the government can hold you on one charge, and then when forced to justify it, can change those charges - where does it end? What sort of mad Orwellian culture is it, where the past can be changed to suit the present?