In an opinion by J. Michael Luttig, the three judges who had upheld the president's detention authority said they were disturbed by the appearance that the government was trying to avoid Supreme Court review. They also noted that Padilla's indictment, which charges him with conspiring to support terrorism and commit violence abroad, "made no mention of the acts upon which the government purported to base its military detention of Padilla."

 Luttig wrote that by keeping Padilla in a brig for three and a half years without trial, then deciding to try him after all once a court approved the detention, the government "left the impression that Padilla may have been held for these years, even if justifiably, by mistake." By pressing the claim that the president has the authority to indefinitely detain anyone he labels an enemy combatant and then seeming to back away from that claim, Luttig said, the government left the impression that "the principle in reliance upon which it has detained Padilla ... can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."

 Luttig warned that the administration's actions may hurt "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." If this episode does result in greater judicial skepticism about assertions of executive power, perhaps we should be thankful to the president for overplaying his hand.