A detailed report in the May 11 Wall Street Journal suggested another reason for Judge Luttig’s resignation: disgust with the administration’s handling of the Jose Padilla case. Last September, Luttig persuaded two liberal judges on a three-judge panel to join him in upholding Bush’s authority to detain Padilla in military prison as an "enemy combatant" based on the administration’s representations in court. "Judge Luttig, according to a person familiar with the court proceedings," the Journal reported, "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."
In December, Atty. Gen. Alberto Gonzales turned around and requested that Luttig vacate his opinion so the Justice Department could seek ordinary criminal charges against Padilla, a move designed to avoid a Supreme Court test of Luttig’s opinion, and which utterly undercut the credibility of the arguments the administration had made in Luttig’s court. Luttig refused the administration’s request and, in his opinion, attacked the administration for maneuvering "at what may ultimately prove to be a substantial cost to the government’s credibility before the courts." With those words, Luttig preserved his own integrity and the integrity of his court. But it may have cost him any chance of being nominated to the Supreme Court by the President who almost gave us a Justice Harriet Miers.