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Padilla's Real Message: The Grace Period is Over 12:06 P.M., 4/4/06
JURIST
Special Guest Columnist Jonathan Freiman, one of the attorneys representing Jose Padilla on his habeas petition, says that the concurrence in the US Supreme Court's rejection of Padilla's certiorari petition stands as a warning to the government that when it comes to imprisoning US citizens without charge or trial, its time may be running out...
"When the Supreme Court declined to hear the Padilla case Monday, 6-3, the decision was widely reported as a win for the Bush Administration. The reporting was only half right. To be sure, the government sidestepped immediate Supreme Court scrutiny of one of the most extreme legal tactics in the war on terror: the indefinite imprisonment, without charge or trial, of American citizens suspected of associating with enemies of the state. But in a carefully worded paragraph near the end of a brief concurrence, Justice Kennedy, joined by the Chief Justice and Justice Stevens, warned the government that its grace period is over.
Jose Padilla is an American citizen who (in 2001) was arrested as a material witness in Chicago and flown to New York, supposedly to testify before a grand jury (regarding his alleged affiliation with al-Qaeda and his alleged attempt to set off a radioactive "dirty bomb" within the U.S.). On the eve of a hearing to determine if Padilla could continue to be detained, the government transported him to a military prison in South Carolina, where for more than three years he was held as an “enemy combatant.”
Two days after being seized by the military, Padilla’s court-appointed attorney filed a writ of habeas corpus with the Second Circuit Court of Appeals in New York City, asking that he be freed. The Second Circuit found that Padilla had to be charged with a crime or released, rejecting the government’s claim that the President could jail Americans without charge or trial. The Supreme Court reversed, in Padilla v. Rumsfeld (2004), on other grounds, 5-4 (the usual lineup) finding that the habeas petition should have been filed in South Carolina (the logic the majority used in this case was almost as impressive as the logic used in Bush v. Gore - and remember, this was the same majority that ripped apart the Elk Grove v. Newdow majority for finding Michael Newdow had no standing).
Justice Scalia’s same-day dissent in the Hamdi v. Rumsfeld case (in which he held that only a suspension of the writ of habeas corpus could justify the indefinite suspension of American citizens), coupled with the four dissenting votes in Padilla (the four dissenters argued that Padilla's petition was properly filed, and that the case therefore should have been decided on the merits - i.e. the Court should have held that Padilla should not have been held for three years), led most court-watchers to conclude that at least five justices viewed the military detention without charge of citizens as illegal.
Padilla re-filed his case in South Carolina and the district court granted him summary judgment, agreeing with the Second Circuit that the President lacked the power to seize citizens on American soil and imprison them without charge indefinitely. The Fourth Circuit (encompassing South Carolina, and probably the most conservative cicruit in the nation; no Supreme Court justice has ever come from this circuit), led by conservative icon Judge Luttig (who, by the way, wrote the dissenting opinion in Hamdi when it was at the Circuit Court level, arguing that Hamdi had the right to challenge his enemy combatant status), reversed (essentially holding, in 2005, that the President could detain Padilla for as "long as we were fighting al-Qaeda"), and Padilla petitioned the Supreme Court for certiorari.
Then things got strange. Having already changed its story about Padilla several times, and with the real possibility of Supreme Court review and reversal, the government shifted course again, asking that Padilla be transferred from military custody to a civilian prison to stand trial for new charges unrelated to the earlier accusations against him (and doing so with very little fanfare. Remember when Ashcroft came on TV and first blustered Padilla's name over the airwaves?)
The Fourth Circuit balked, with Judge Luttig (who, by this point in time, had lost out a Supreme Court nomination to John Roberts, Harriet Miers and Samuel Alito) penning some of the most memorable words in this long case. “[A]s the government surely must understand,” he wrote, the government’s actions left two deeply unsettling impressions: “that Padilla may have been held for these years, even if justifiably, by mistake,” and "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, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency (i.e. can yield to the government's desire to put Padilla before the civilian courts so as to avoid military review, thereby putting the lie to the notion that Padilla is so dangerous he must be locked up indefinitely in a military prison) 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 extant."
Luttig continued: "And these 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."
And again: "On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather than by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception (i.e. Luttig's perception) that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court."
Undeterred, the government argued that Padilla’s transfer would moot the case or make it less worthy of review, then sought and received permission from the Supreme Court - all of it -to transfer Padilla (the court cowardly noted that it would "take up the petition for certiorari in due course," which is an illusory promise).
The Court listed the certiorari petition for consideration at an extraordinary eight conferences. Some commentators speculated that the wait augured a long dissent from a denial of certiorari, but yesterday’s denial (one vote shy of the four required to grant cert.) came accompanied only by thin escorts: a 2-page dissent by Justice Ginsburg (Breyer and Souter also dissented from the denial of cert., but did not provide a written explanation for their dissent), and Justice Kennedy’s 4-page concurrence for himself, the Chief Justice (who distinguished himself from Alito, who, along with Scalia and Thomas, just refused to grant cert., period - this may be the most compelling evidence yet that Roberts is not as big a whack job as Scalia and Thomas but that Alito is) and Justice Stevens.
The concurring opinion begins ordinarily enough, taking no position on the mootness arguments but concluding that “there are strong prudential considerations” for denying certiorari, both because Padilla is not now in military prison and because his “claims raise fundamental issues respecting the separation of powers, including the role and function of the courts.” In other words, today, when no American languishes without charge in a military prison, is the wrong day to decide such a monumental issue. But echoing Judge Luttig’s concerns about the government’s waning credibility, Justice Kennedy noted that in “light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.” The concurrence did not think that “continuing concern” worth resolving now because it “can be addressed if the necessity arises” – i.e., if he is again thrown into a military prison.
The opinion could have ended there. Instead, it goes out of its way to make clear that if the government again tries to imprison an American citizen without charge or trial, the issue will be resolved quickly. In the space of three sentences, Justice Kennedy three times emphasizes the need for swift resolution: Padilla is entitled to all normal constitutional protections, “including the right to a speedy trial”; if the government “seek[s] to change the status or conditions of Padilla’s custody,” the district court should “rule quickly” on the legality of such changes; and not only the district court but all “courts of competent jurisdiction” “should act promptly” on the legality of any such governmental moves. Indeed, the concurrence emphasizes that Padilla “retains the option of seeking a writ of habeas corpus in this Court,” a reminder of the little-used and oft-disfavored direct path to the Court. Such speedy review is essential, Justice Kennedy explained, “to ensure that the office and purposes of the writ of habeas corpus are not compromised.”
To my mind, the office and purposes of the writ were already compromised in Padilla’s case, where the government locked up a citizen in a military prison for years without charging him or giving him a chance to defend himself. There is nothing prompt about that. But if the concurring justices do not think the writ has yet been compromised, they signaled yesterday that the hour is nigh, and the opinion takes steps to warn that the government’s grace period is over. It may have taken four years the first time, Justice Kennedy suggests, but it won’t the next time.
For Padilla, who faces the unthinkable prospect of being re-interned in a military prison even if found innocent in Florida, that’s a silver lining. For the rest of us, it’s at least a comforting indication that the Court recognizes that “at stake in this case is nothing less than the essence of a free society,” as Justice Stevens warned two years ago. He was not alone. As the late Chief Justice Rehnquist wrote then for the Court, the central but as-yet unanswered question raised by Padilla’s case is “indisputably of profound importance.” Monday's order and opinions reveal a Court ready to answer those essential questions if the government ever again starts to lock up citizens without charge or trial.
**********************************************************************
It seems that the Court was saying, "Fool us once, we won't notice." "Fool us again, we won't give a shit." "But fool us a third time, and a narrow majority may end up writing an opinion tailored only to the facts of this case that ends up throwing a bone to Padilla - er, an opinion that holds that a President cannot hold a citizen indefinitely in a time of "war" without explanation or trial." I shudder.
Padilla's Real Message: The Grace Period is Over 12:06 P.M., 4/4/06
JURIST
Special Guest Columnist Jonathan Freiman, one of the attorneys representing Jose Padilla on his habeas petition, says that the concurrence in the US Supreme Court's rejection of Padilla's certiorari petition stands as a warning to the government that when it comes to imprisoning US citizens without charge or trial, its time may be running out...
"When the Supreme Court declined to hear the Padilla case Monday, 6-3, the decision was widely reported as a win for the Bush Administration. The reporting was only half right. To be sure, the government sidestepped immediate Supreme Court scrutiny of one of the most extreme legal tactics in the war on terror: the indefinite imprisonment, without charge or trial, of American citizens suspected of associating with enemies of the state. But in a carefully worded paragraph near the end of a brief concurrence, Justice Kennedy, joined by the Chief Justice and Justice Stevens, warned the government that its grace period is over.
Jose Padilla is an American citizen who (in 2001) was arrested as a material witness in Chicago and flown to New York, supposedly to testify before a grand jury (regarding his alleged affiliation with al-Qaeda and his alleged attempt to set off a radioactive "dirty bomb" within the U.S.). On the eve of a hearing to determine if Padilla could continue to be detained, the government transported him to a military prison in South Carolina, where for more than three years he was held as an “enemy combatant.”
Two days after being seized by the military, Padilla’s court-appointed attorney filed a writ of habeas corpus with the Second Circuit Court of Appeals in New York City, asking that he be freed. The Second Circuit found that Padilla had to be charged with a crime or released, rejecting the government’s claim that the President could jail Americans without charge or trial. The Supreme Court reversed, in Padilla v. Rumsfeld (2004), on other grounds, 5-4 (the usual lineup) finding that the habeas petition should have been filed in South Carolina (the logic the majority used in this case was almost as impressive as the logic used in Bush v. Gore - and remember, this was the same majority that ripped apart the Elk Grove v. Newdow majority for finding Michael Newdow had no standing).
Justice Scalia’s same-day dissent in the Hamdi v. Rumsfeld case (in which he held that only a suspension of the writ of habeas corpus could justify the indefinite suspension of American citizens), coupled with the four dissenting votes in Padilla (the four dissenters argued that Padilla's petition was properly filed, and that the case therefore should have been decided on the merits - i.e. the Court should have held that Padilla should not have been held for three years), led most court-watchers to conclude that at least five justices viewed the military detention without charge of citizens as illegal.
Padilla re-filed his case in South Carolina and the district court granted him summary judgment, agreeing with the Second Circuit that the President lacked the power to seize citizens on American soil and imprison them without charge indefinitely. The Fourth Circuit (encompassing South Carolina, and probably the most conservative cicruit in the nation; no Supreme Court justice has ever come from this circuit), led by conservative icon Judge Luttig (who, by the way, wrote the dissenting opinion in Hamdi when it was at the Circuit Court level, arguing that Hamdi had the right to challenge his enemy combatant status), reversed (essentially holding, in 2005, that the President could detain Padilla for as "long as we were fighting al-Qaeda"), and Padilla petitioned the Supreme Court for certiorari.
Then things got strange. Having already changed its story about Padilla several times, and with the real possibility of Supreme Court review and reversal, the government shifted course again, asking that Padilla be transferred from military custody to a civilian prison to stand trial for new charges unrelated to the earlier accusations against him (and doing so with very little fanfare. Remember when Ashcroft came on TV and first blustered Padilla's name over the airwaves?)
The Fourth Circuit balked, with Judge Luttig (who, by this point in time, had lost out a Supreme Court nomination to John Roberts, Harriet Miers and Samuel Alito) penning some of the most memorable words in this long case. “[A]s the government surely must understand,” he wrote, the government’s actions left two deeply unsettling impressions: “that Padilla may have been held for these years, even if justifiably, by mistake,” and "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, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency (i.e. can yield to the government's desire to put Padilla before the civilian courts so as to avoid military review, thereby putting the lie to the notion that Padilla is so dangerous he must be locked up indefinitely in a military prison) 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 extant."
Luttig continued: "And these 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."
And again: "On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather than by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception (i.e. Luttig's perception) that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court."
Undeterred, the government argued that Padilla’s transfer would moot the case or make it less worthy of review, then sought and received permission from the Supreme Court - all of it -to transfer Padilla (the court cowardly noted that it would "take up the petition for certiorari in due course," which is an illusory promise).
The Court listed the certiorari petition for consideration at an extraordinary eight conferences. Some commentators speculated that the wait augured a long dissent from a denial of certiorari, but yesterday’s denial (one vote shy of the four required to grant cert.) came accompanied only by thin escorts: a 2-page dissent by Justice Ginsburg (Breyer and Souter also dissented from the denial of cert., but did not provide a written explanation for their dissent), and Justice Kennedy’s 4-page concurrence for himself, the Chief Justice (who distinguished himself from Alito, who, along with Scalia and Thomas, just refused to grant cert., period - this may be the most compelling evidence yet that Roberts is not as big a whack job as Scalia and Thomas but that Alito is) and Justice Stevens.
The concurring opinion begins ordinarily enough, taking no position on the mootness arguments but concluding that “there are strong prudential considerations” for denying certiorari, both because Padilla is not now in military prison and because his “claims raise fundamental issues respecting the separation of powers, including the role and function of the courts.” In other words, today, when no American languishes without charge in a military prison, is the wrong day to decide such a monumental issue. But echoing Judge Luttig’s concerns about the government’s waning credibility, Justice Kennedy noted that in “light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.” The concurrence did not think that “continuing concern” worth resolving now because it “can be addressed if the necessity arises” – i.e., if he is again thrown into a military prison.
The opinion could have ended there. Instead, it goes out of its way to make clear that if the government again tries to imprison an American citizen without charge or trial, the issue will be resolved quickly. In the space of three sentences, Justice Kennedy three times emphasizes the need for swift resolution: Padilla is entitled to all normal constitutional protections, “including the right to a speedy trial”; if the government “seek[s] to change the status or conditions of Padilla’s custody,” the district court should “rule quickly” on the legality of such changes; and not only the district court but all “courts of competent jurisdiction” “should act promptly” on the legality of any such governmental moves. Indeed, the concurrence emphasizes that Padilla “retains the option of seeking a writ of habeas corpus in this Court,” a reminder of the little-used and oft-disfavored direct path to the Court. Such speedy review is essential, Justice Kennedy explained, “to ensure that the office and purposes of the writ of habeas corpus are not compromised.”
To my mind, the office and purposes of the writ were already compromised in Padilla’s case, where the government locked up a citizen in a military prison for years without charging him or giving him a chance to defend himself. There is nothing prompt about that. But if the concurring justices do not think the writ has yet been compromised, they signaled yesterday that the hour is nigh, and the opinion takes steps to warn that the government’s grace period is over. It may have taken four years the first time, Justice Kennedy suggests, but it won’t the next time.
For Padilla, who faces the unthinkable prospect of being re-interned in a military prison even if found innocent in Florida, that’s a silver lining. For the rest of us, it’s at least a comforting indication that the Court recognizes that “at stake in this case is nothing less than the essence of a free society,” as Justice Stevens warned two years ago. He was not alone. As the late Chief Justice Rehnquist wrote then for the Court, the central but as-yet unanswered question raised by Padilla’s case is “indisputably of profound importance.” Monday's order and opinions reveal a Court ready to answer those essential questions if the government ever again starts to lock up citizens without charge or trial.
**********************************************************************
It seems that the Court was saying, "Fool us once, we won't notice." "Fool us again, we won't give a shit." "But fool us a third time, and a narrow majority may end up writing an opinion tailored only to the facts of this case that ends up throwing a bone to Padilla - er, an opinion that holds that a President cannot hold a citizen indefinitely in a time of "war" without explanation or trial." I shudder.
posted by EnterCenter at 12:54 PM
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