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Jose Padilla U.S. Court, Justice AP / CBS

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com and in this commentary, explores the Bush administration's legal moves regarding "enemy combatants."


While the Bush administration was at the barricades last week defending its domestic spying program, one of its staunchest legal allies — one of the most conservative federal appeals court judges in the country — launched an extraordinarily candid rearward attack on the credibility and integrity of White House and Justice Department lawyers.

4th U.S. Circuit Court of Appeals Judge J. Michael Luttig, a perennial name on President's Bush's so-called "short-list" for the United States Supreme Court, called out the brightest and most powerful legal and political minds in the administration when he and his colleagues rejected a Justice Department request to take civilian custody of former dirty bomb suspect Jose Padilla from the military, so that he may be tried in federal court on terror support charges.

Although the 14-page order won't likely change Padilla's ultimate fate or the broad contours of American law, it was the sharpest rebuke yet that the federal courts have offered the administration for its willy-nilly handling of terror suspects since 9-11. It wasn't just that Luttig and Company refused to do what the White House had asked them to do. It was the language and tone they employed in challenging the Bush administration's conduct and motives.

And it is all the more startling coming from Luttig, previously and probably soon again a great supporter of broad presidential war powers. It was Luttig, after all, whose decision earlier this year upheld the White House's authority to detain indefinitely so-called "enemy combatants." But now, clearly, Judge Luttig is fed up with and more than a little suspicious about the way the government has treated Padilla and, by extension, the federal courts.

He and his colleagues were not satisfied, for example, with the Justice Department's explanation as to why after three-and-half years it suddenly decided that Padilla was not a "dirty bomb" suspect whose military detention was "imperative in the interest of national security." They were not satisfied with that explanation because the administration has not yet offered one. When invited to do so a few weeks ago by Judge Luttig, the feds said, essentially, "Forget it. Never mind. Now that we have unilaterally decided we don't need Padilla as an 'enemy combatant,' just withdraw that landmark decision you made in our favor in September that recognized him as such."

  • Jessica Goldman

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