Inconsistency, Legal Argument, and the War on Terror

Steve notes below Judge Luttig's scathing opinion for the court in response to the government's procedural shenanigans in the Padilla case. After explaining why the government should not be allowed to evade Supreme Court scrutiny by expeditiously deciding that Padilla can be put through the criminal justice system after all, Luttig notes that the government's refusal to come clean with the court and its inconsistent stance on Padilla end up implying that either Padilla has been detained for years on a mistake, or that the pressing importance of being able to detain American citizens is not such a big deal after all. As Luttig puts it:

(T)hese 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.

Meanwhile, over at my home blog, I've been joining Marty Lederman in criticizing the administration's alleged interpretation of the Authorization for the Use of Military Force, and in particular suggesting that there is a tension between the administation claims about the breadth of AUMF, and the administration claims that unless we renews the Patriot Act ASAP, Al Qaeda will strike again. (See my posts here and here). The smartest response is from Anthony Rickey, who argues that it is unfair to hold a political speech to the standards of a legal brief.

But it is not as if the government's legal briefs are much more consistent (when it bothers to brief the court at all), which is Judge Luttig's point. One of Anthony's commenters thinks this is nothing to complain about-- lawyers press every argument they've got, that's their job. But of course, it's not exactly the job of government lawyers and the solicitor general's office, and it's really not the job of the President, or whoever makes the ultimate decision about executive branch interpretation of the law and the constitution. If they executive interpretations of the law to be respected as co-equal to the Supreme Court's, they are supposed to be good faith legal decisionmakers. And while I think much, much, of the criticism of the government's legal arguments during the war on terror is overblown, I think recent events make it increasingly less likely that the President takes his constitutional obligations seriously. Others yawn and say that this is life in post-TV politics, but I have hold the President's legal machinery to higher standards. He is not a 2-bit Manhattan lawyer suing Wal-Mart.
If the President thinks, with Justice Thomas, that courts should stay out of the war on terror almost entirely, he should simply stop sending his lawyers to show up in court. We could then argue about the extent of inherent executive power, departmentalism, and so on. But that does not appear to be the President's theory. Indeed, it is not clear that there is any theory here at all. To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to "take care . . . be faithfully executed."