This is an interesting story from today's WSJ.
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Short Circuit Breakdown of Trust Led Judge Luttig
To Clash With Bush After Fight in Terrorism Case,
Conservative Star Gives Up Court Seat for Boeing Job
New Task: Appease McCain
By JESS BRAVIN and J. LYNN LUNSFORD
May 11, 2006; Page A1
McLEAN, Va. -- On Nov. 22, U.S. Circuit Judge J. Michael Luttig was at work in his chambers here when he received a telephone call telling him to switch on the television. There, he saw Attorney General Alberto Gonzales announce that the government would file charges against Jose Padilla in a federal court -- treating the accused terrorist like a normal criminal suspect.
The judge was stunned. Two months earlier, he had written a landmark opinion saying the government could hold Mr. Padilla without charge in a military brig. (Read the opinion.1) The decision validated President Bush's claim that he could set aside Mr. Padilla's constitutional rights in the name of national security. The judge assumed the government had a compelling reason to consider the suspect an extraordinary threat. Now Mr. Gonzales wanted the courts to forget the whole case.
It didn't take long for the judge's anger to burst out into the open. The next month he wrote that moves such as the attorney general's cast doubt on the Bush administration's "credibility before the courts." Judge Luttig tried to block Mr. Padilla's transfer to civilian custody from the brig. (Read the opinion.2) The administration's top litigator fired back that the judge "defies both law and logic."
The clash, which underscores the increasing skepticism among even some conservative jurists toward the Bush administration's sweeping theories of executive power, culminated yesterday in Judge Luttig's resignation. The 51-year-old judge, once considered a likely Bush nominee to the U.S. Supreme Court, stepped down from his lifetime seat on the Fourth U.S. Circuit Court of Appeals to start a new career in Chicago as general counsel for Boeing Co.
Ken Duberstein, Boeing's lead director and former chief of staff in the Reagan White House, suggested Judge Luttig for the post, according to people familiar with the matter. The current general counsel, Doug Bain, is retiring. Mr. Duberstein was aware of Boeing Chief Executive Jim McNerney's desire to send a strong message about ethics in the wake of the company's high-profile legal troubles in the past three years.
Boeing's hiring of Judge Luttig is a shrewd political move because it may signal to lawmakers, especially Sen. John McCain, a member of the Senate Armed Services Committee who is close to Mr. Duberstein, that the company is keen to clean up its act. Amid scandals including Boeing's illegal hiring of a former top Air Force official, Sen. McCain came down hard on a $20 billion Air Force plan to lease a fleet of aerial-refueling tankers from Boeing. The plan was ultimately thrown out.
Last year, as the White House weighed nominees for the Supreme Court, Judge Luttig's name repeatedly surfaced as the conservative movement's dream candidate -- and the worst nightmare for liberals. Reputed to be the most conservative judge on the most conservative federal appeals court, the Texas-born jurist also is a renowned legal craftsman. Some of his former law clerks have gone on to powerful positions in Republican politics and the Bush administration.
Television crews, anticipating a Luttig nomination, staked out the judge's house on July 19, when President Bush was to announce his choice to succeed Justice Sandra Day O'Connor. The nomination went to John Roberts, a friend of Judge Luttig from their days in the Reagan administration, but Judge Luttig continued to uphold his reputation as a stalwart backer of White House views. On Sept. 9, the three-judge appeals panel he headed issued a unanimous opinion granting the president virtually unfettered power to detain Mr. Padilla indefinitely.
Mr. Padilla was arrested in May 2002 when he arrived at O'Hare International Airport from Pakistan. At first, he was held as a material witness in a terrorism investigation. A court-appointed lawyer moved to have Mr. Padilla released, and federal authorities feared they lacked sufficient evidence to keep him in custody. Shortly before a court hearing, the government secretly transferred Mr. Padilla to a military brig in Charleston, S.C.
At a news conference on June 10, then-Attorney General John Ashcroft said Mr. Padilla's capture "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb.'" President Bush determined Mr. Padilla "is an enemy combatant who poses a serious and continuing threat to the American people and our national security," Mr. Ashcroft said.
Mr. Padilla's lawyers challenged his detention in New York, which is part of the liberal-leaning Second Circuit. The government said any legal claims should be transferred to South Carolina, part of Judge Luttig's Fourth Circuit. The Second Circuit refused to do so.
In December 2003 the Second Circuit ruled the detention illegal. In a 2-1 decision, the court found that the congressional resolution permitting a military response to the Sept. 11, 2001, terrorist attacks did not permit the government to detain a U.S. citizen arrested on American soil without charges. The U.S. Constitution says those accused of a crime have the right to a speedy trial.
The government appealed to the U.S. Supreme Court, but the justices didn't rule on the merits. In a 5-4 opinion written by then-Chief Justice William Rehnquist, the court said the case should be heard in South Carolina. A district judge there also found the detention illegal, and after an appeal the case landed at the chambers of Judge Luttig.
Born in Tyler, Texas, Judge Luttig says that from an early age he dreamed of working at the Supreme Court. He achieved that by serving as a law clerk and later special assistant to Chief Justice Warren Burger.
As an official in the administrations of Ronald Reagan and George H.W. Bush, Judge Luttig was part of a group of conservative activists eager to remake a judiciary they considered dominated by liberals. In the first Bush administration Judge Luttig served in and eventually headed the Justice Department's Office of Legal Counsel. He helped prepare Supreme Court nominees David Souter and Clarence Thomas for their confirmation hearings. He also helped define the president's war powers during the first Gulf War. In 1991, at age 37, he became a circuit judge.
Three years later, a tragedy brought the judge into personal contact with the legal system. His father was murdered and his mother terrorized in a carjacking outside their Tyler home. Judge Luttig assisted prosecutors in assembling the case, which reached the Supreme Court twice before the killer's eventual execution.
After 9/11, Judge Luttig agreed in several cases with the government's placement of the line between national security and civil liberties. He agreed that U.S.-born Yaser Hamdi, captured in Afghanistan, could be held as an enemy combatant.
Leading the Lawyer
At oral arguments in the Padilla case last year, Judge Luttig laid out a clear theory by which the Second Circuit's reasoning could be rebutted, at times seeming to lead the government's lawyer, Solicitor General Paul Clement, along with him.
After Mr. Clement referred to the Padilla incarceration as a "nonbattlefield detention," Judge Luttig suggested another approach. "In effect, Mr. Clement, doesn't the United States have to be arguing that, at least in the war on terror, the battlefield includes the United States?" the judge asked. After repeated pressing, Mr. Clement agreed: "I am prepared to say that this is a battlefield."
Another judge on the panel, Blane Michael, didn't seem so persuaded. Judge Michael and the panel's third member, Judge William Traxler were both Clinton appointees expected to be skeptical of the Bush administration's claims.
When the opinion was issued on Sept. 9, Judge Luttig delivered a coup: a unanimous opinion, written by himself, declaring that the president's powers to detain those he considered enemy combatants apply anywhere in the world, including the U.S.
Judge Luttig, according to a person familiar with the court proceedings, put his own credibility on the line, drawing on his own experience in national-security law and confidence in Bush administration officials he knew. He argued to his colleagues that the government wouldn't have sought such extraordinary powers unless absolutely necessary, this person says.
Then, in November, the administration suddenly announced that it didn't consider Mr. Padilla an enemy combatant any more and would charge him in a regular federal court. The move came just two days before the government's deadline to submit briefs to the Supreme Court, which was weighing an appeal of the Fourth Circuit's September decision.
A person familiar with the judge's thinking says it's evident he felt the government had pulled "the carpet out from under him." In an interview yesterday, Judge Luttig said, "I thought that it was appropriate that the Supreme Court would have the final review of the case."
Attorney General Gonzales offered no explanation for the move, but critics accused the government of gaming the court system. By making the Supreme Court appeal moot, the government could avoid a possible reversal at the nation's highest court while preserving the favorable Fourth Circuit ruling.
Instead of granting what the government considered a pro forma request to transfer Mr. Padilla to civilian custody, Judge Luttig ordered the parties to submit arguments over the question. On Dec. 21, Judge Luttig delivered a judicial bombshell: a carefully worded order refusing to move Mr. Padilla until the Supreme Court decided what to do. The order all but accused the Bush administration of misconduct.
"The government's abrupt change in course" appeared designed "to avoid consideration of our decision by the Supreme Court," Judge Luttig wrote. The government's actions suggested that "Padilla may have been held for these years...by mistake" and, even worse, that the government's legal positions "can, in the end, yield to expediency." Such tactics, Judge Luttig warned, could exact a "substantial cost to the government's credibility before the courts."
Furious Request
A furious Bush administration asked the Supreme Court to overrule the Fourth Circuit. The ruling "second guesses and usurps both the president's commander-in-chief authority and the Executive's prosecutorial discretion in a manner inconsistent with bedrock principles of separation of powers," Mr. Clement, the solicitor general, wrote.
The Supreme Court agreed to let Mr. Padilla move -- he is now in a Miami jail -- but the administration's strategy of funneling war-powers cases to the Fourth Circuit was in tatters.
"Luttig's parting shot as a judge may be the most defining opinion that he's written," says A.E. Dick Howard, who taught Judge Luttig at the University of Virginia School of Law and has been his friend since. Prof. Howard says the opinion reminds him of a line from Shakespeare's "Macbeth": "Nothing in his life/ Became him like the leaving it."
People familiar with Judge Luttig's thinking say he knew his condemnation of the administration would bring a personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary -- and the view that judges are on "our team" or "their team."
People close to the Bush administration see it differently. They dismiss Judge Luttig's opinion as a judicial tantrum, noting that it came after he was passed over three times for a Supreme Court position. President Bush nominated Judge Roberts, Harriet Miers (who withdrew) and Judge Samuel Alito.
As Judge Luttig's frustrations were rising, Boeing was trying to recover from scandals including its acquisition of proprietary documents from rival Lockheed Martin Corp. and negotiations to hire a senior Air Force official while she retained authority over big Boeing contracts. Boeing is now negotiating a settlement to resolve all the government's outstanding criminal and civil claims.
Mr. Bain, the current general counsel, delivered a harsh speech in January to the company's top executives, noting that some prosecutors "believe that Boeing is rotten to the core." He warned: "We just cannot stand another major scandal."
Mr. Duberstein, who had taken over as lead director in December, put Mr. McNerney, the Boeing chief, in touch with Judge Luttig. In his new job, the judge will likely be making far more than his current salary of $171,800. Judge Luttig alluded to his financial situation in his resignation letter to President Bush, noting his daughter is near college age and his son "is following not long behind."
The judge's letter was noteworthy in part for what it didn't say. Instead of praising President Bush, he expressed his "heartfelt thanks to your father, because of whom my professional dreams in life came true." A White House spokeswoman said President Bush regrets Judge Luttig's departure but "wishes him and his family the best."
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