With Friends Like ThisWith Friends Like This…

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."

So, quite understandably, Luttig then wondered aloud whether the White House quickly abandoned its long-held "enemy combatant" argument against Padilla because it was afraid of losing its case on that point at the Supreme Court (a distinct possibility, given the High Court's Hamdi ruling in 2004). The timing of the government's turnaround was suspicious to Luttig because, he wrote, the indictment came just days before two important briefing deadlines, including one at the Supreme Court, which has been asked by Padilla's attorneys to review (and overturn) Luttig's September ruling.

"The government," Luttig wrote, "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." This is not a happy judge. This is not a trustful judge. This is a judge who believes that the executive branch is failing to show the proper respect to the judicial branch and to the justice system itself.

This is a judge who suggested strongly that in the Padilla case the administration has been more forthcoming to the media than it has to the court. "It should go without saying that we cannot rest our decisions on media reports of statements from anonymous government sources regarding facts relevant to matters pending before the court, nor should we be required to do so or to speculate as to facts based upon such reports. The information that the government would provide to the media with respect to facts relevant to a pending litigation, it should be prepared to provide to the court." Ouch.

And this is a judge who needs to see and hear more from federal lawyers before he believes that Padilla's transfer is warranted because of government concerns about "the disclosure of the circumstances surrounding its receipt of the information regarding Padilla's plans to blow up buildings in American cities or the identities and locations of the persons who provided that information." The remedy for that problem, Luttig wrote, is not to simply abandon the pending case but for the government to seek a stay of the evidentiary issues in the case pending Supreme Court review.

Luttig also rejected the Justice Department's transfer request because he believes the Padilla case involves issues of "sufficient national importance as to warrant consideration by the Supreme Court, even if that consideration concludes only in a denial of certiorari." And he implored federal lawyers to understand that their recent actions in the case "have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extent."

Luttig means here that even he, an ideological ally to this administration, cannot believe how little the White House seems to care about the perceptions it has created among federal judges by its cavalier attitude toward the courts. Government attorneys, Luttig wrote "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…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 likewise could ill afford to leave extent."

The executive branch's schizophrenic and arrogant conduct in the Padilla case, Luttig warned, had created negative "impressions" that may "ultimately prove" to leave a "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 it seems to abandon today." In regular-people speak, that's a prominent federal appeals court judge telling federal attorneys of his own political persuasion that they should stop jerking around the justice system in the name of fighting terrorism.

Since the terror attacks on America, it is hard to identify a federal judge who has been a better friend to the current administration in its legal front on the war on terror than Luttig. So his harsh words ought to serve as a warning to all of his legal and political friends in power: the courts cannot and will not be used any longer as mere tools to achieve the particular purposes of an administration, even one that is fighting at home against terrorists, real or perceived. Four years ago, the federal courts bent over backward to defer to the bald assertions made by Justice Department lawyers in terror law cases. If those days weren't already over, they are now: Judge Luttig just said so more directly and succinctly than any of his colleagues have yet to date.