Nat Hentoff has an interesting column at the Village Voice about the Jose Padilla case and the Supreme Court. A little background on the case: in 2002, Jose Padilla was arrested at O'hare airport. John Ashcroft announced the arrest and said that Padilla was planning to set off a radioactive "dirty bomb" and that they had stopped him. He was thrown into a military prison, where he was held incommunicado - no contact with family, with attorneys, no charges filed, nothing. A suit was filed on his behalf but in 2004, the Supreme Court rejected the appeal because it had been filed in the wrong jurisdiction.
The case was then refiled in the proper district, but just as it looked like the court of appeals was going to rule against the administration and force them to either file charges against Padilla or release him, they transferred him to a civilian prison and filed charges against him - none of which have anything to do with setting off a dirty bomb, as they originally claimed. They did this, almost certainly, to avoid having the Court rule against the "enemy combatant" status for US citizens so they could preserve their power to designate people that way in the future and the DC Court of Appeals allowed them to do it. The Supreme Court then refused cert on the case and now the civilian charges will be heard in court.
The refusal of cert was viewed by civil libertarians as a negative development, but Hentoff argues that it might well be a good thing. His reading of the opinions of the justices is that they want to wait until the civilian charges are heard before ruling on the matter because the administration can always put Padilla back into a military prison with enemy combatant status even if he is acquitted on the civilian charges. Hentoff writes:
If this happened to Padilla--warned John Roberts, Anthony Kennedy, and John Paul Stevens in their concurring opinions--the Supreme Court wouldl teach Bush a lesson he and the nation will not forget. Even, therefore, if Padilla is acquitted in a lower civilian court, the often cited Professor Michael Greenberger, director of the University of Maryland's Center Health and Homeland Security, told National Public Radio:
"I think we're going to see the end of the use of the enemy combatant status . . . arresting a U.S. citizen in the United States and claiming they can be held incommunicado without contact with the outside world."
When Padilla first appeared before the Supreme Court two years ago, John Paul Stevens, speaking for justices who wanted to hear his case then, said: "At stake in this case is nothing less than the essence of a free society." And the then chief justice, William Rehnquist, writing for the majority that dismissed the case on a technicality, spoke for the court, also emphasizing that Padilla's case was "indisputably of profound importance." Will somebody try to explain all of this to Bush?
I hope Hentoff is right.
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Speculating as to why the Supreme Court does what it does is always good, clean fun for the whole family, so let me throw in my two cents worth. Start with the premise that the Justices were concerned that any adverse ruling they might hand down would simply be ignored by the President. This is not an unreasonable thing for them to believe, since this President has repeatedly shown a willingness to ignore Congress when it suits his purpose. Of course, a good argument can be made that it would be more politically risky for the President to ignore the Court than Congress, but set that aside for the moment. If this premise is correct, then it is easy to view the cert denial as more a political act than a jurisprudential one. Jurisprudentially, this is a classic example of voluntary cessation by the government. The constitutionality of Padilla's detention as an "enemy combatant" has not been mooted; the government is free to change its mind at any time, dismiss the indictment, and haul Padilla back to a military lockup.
Politically, at the very least, the cert denial buys the Court some time. If the Court has to take the issue up, it would much prefer to do so when the occupant of the White House recognizes some constitutional limit on the Executive power. Stated differently, the Court doesn't want to put its institutional capital on the line against a Chief Executive who will be out of power in three years. Time is on the Court's side, and one can easily foresee a scenario (perhaps guided further by the Court) where the Padilla case doesn't make it back up to the Court on this substantive issue until after Bush leaves office.
In the best of all worlds for the Court, of course, it never sees the Padilla case again. I don't think this is a likely outcome -- Bush has let the genie out of the bottle, in a sense -- but an acquittal would make it much easier for a determined Court to avoid the issue altogether.
In short, politically it was a smart move. Jurisprudentially, it is a weak decision, though one could argue that by avoiding a showdown with the President, the Court has actually worked to preserve the rule of law. Time, as they say, heals all wounds. This one will begin healing (hopefully) on January 21, 2009.
I don't follow Hentoff's or Dan's reasoning at all. If the Bush administration could put him back in prison following a civilian acquittal, as I have no doubt they would, surely that's even more justification for following voluntary cessation precedent and granting cert. Is Hentoff saying that the Supremes will feel more justified in overturning the imprisonment if a civilian court has acquitted him already? And if so, why? It shouldn't matter for them whether or not Padilla is innocent - it's the habeas corpus issue that matters.
As for Dan:
Again, I don't see this at all, unless your point is that the Supremes are afraid that having ruled against the administration, the administration will just ignore them. And if that's the case, then surely it's the responsibility of the Supreme Court as defender of the constitution to take a stand. Surely it's much better to take the issue up when the occupant of the White House doesn't recognise any limit on his power - it's so clearly a wrong position that no reasonable person could accuse the Supremes of bad jurisprudence if they strike it down.
Ginger wrote:
That's exactly my point. What sort of a "stand" would you have the Court take? The Court finds the President's actions unconstitutional. The next day, Doe is arrested at JFK under circumstances substantially the same as those of Padilla; the President does the same thing as in Padilla. What can the Court do about it? (Hint: no matter how you respond, my response will be "The President will ignore that.")
What constitutional limitations does this President recognize on the Commander-in-Chief power when it comes to prosecuting the "War on Terror"? If there are any, I've not seen them. He opposes them, publicly. If Congress acts anyway, he issues a signing statement indicating that he'll ignore the law whenever he feels justified in doing so. When Feingold proposed a censure, Feingold was practically laughed out of the chamber. Where, exactly, have all the "reasonable" people gone?
I'm going to agree and disagree with Dan here. I don't buy the argument that the Supreme Court did this because they were convinced that Bush would ignore any ruling they issued on it. I would even agree with Ginger that if they thought that was the case, now was exactly the time to do it. If we've got an out of control executive branch, the solution is not to just throw up our hands and wait for the next one. And I frankly don't think that Bush would ignore the Supreme Court's ruling. Yes, there is a precedent for it in Lincoln, who ignored the Court when it told him that he couldn't suspend habeas corpus. But I doubt any president could get away with that in an age of 24 hour news coverage and at a time when the Supreme Court is viewed as far more powerful than it was in 1861.
He might well encourage Congress to limit the court's authority in that area, and that would be bad enough, but actually ignore the court's ruling? Even for Bush, that would be highly unlikely. It would provoke a constitutional crisis that could easily bring down his presidency, and if he doesn't know that the people around him surely do. Every Democrat, independent and libertarian would be against him on it, and so would a sizable portion of Republicans and conservatives - and not just against him, but adamantly so. You need look no further than Roy Moore for an example - yes, he still has the loonies in his corner, but that's the only people he has in his corner. Even staunchly conservative people who were otherwise on his side on the merits, like Judge Pryor, were all for bringing him up on charges for refusing to follow a legal court order. He is left with only the support of the loonies. Refusing to follow a Supreme Court ruling would bring impeachment proceedings in a heartbeat, especially in light of Bush's approval ratings. He would lose every moderate Republican and all the Democrats and a sizable portion of the hardcore conservatives as well (certainly all of the establishment Republicans), and even those who might otherwise agree with him would have no political incentive to support him because his polling is so low with the public. I just don't see it happening.
I don't know that he would ignore the Court and say he was doing so -- I'd be inclined to agree that he would not do that. I think he'd go the stealth route, finding some irrelevant, hair-splitting factual or legal distinction to "distinguish" any later case, thus effectively ignoring a ruling he didn't like. Stated differently, to the credulous he wouldn't be ignoring the Court; the Padilla decision simply would not be applicable. But it wouldn't take a great deal of insight to see what was really going on. Presidential signing statements have flown underneath the radar; I think this tactic would be equally successful.
We're in agreement that, as I said, it would be a risky move for Bush. The people may be much less tolerant of a President messing with the Court than with Congress. But this President is clearly the Supreme Risktaker-in-Chief, and is absolutely confident of his (or, more accurately, his advisors') ability to obfuscate facts with rhetoric. "The Padilla decision is not applicable here." Remember, say it often enough and it becomes the truth.
I find it hard to believe that you could hairsplit convincingly about holding a US citizen without charge. It's fairly black and white. As Ed says, what taking a stand would do, even if the president ignored it, would be to force the issue in the public sphere. For reasons I don't understand, despite the admitted lawbreaking of the NSA scandal and the obvious unconstitutionality of the Padilla situation, the media and Congress, even most Democrats, refuse to acknowledge the major constitutional crisis we are undergoing. You get the occasional tut-tutting editorial, or a snarky comment from Reid, but no attempt to actually do something about it and protect the rule of law. If the administration completely ignores the Supreme Court on something like habeas corpus, I think that might just wake a few people up.
I think Dan's comment here is much more plausible, that the administration would invent some highly technical distinction between any future case and the Padilla decision. But it would be a very difficult thing to do if the court ruled the way that Scalia, for example, would want. Scalia's argument is quite blunt and difficult to get around - the President has no authority to suspend habeas corpus unless the Congress declares the writ suspended for the reasons stated in the Constitution, and not just for one suspect but for all suspects. If the ruling is that blunt, it's difficult to draw even the most lawyerly distinctions. If the suspect is a US citizen, he is entitled to the full protection of due process guaranteed by the Constitution, period. Which doesn't mean Bush wouldn't try, of course, but I don't see it working. And frankly, I don't see the Court pulling back from such a fight to wait for a more conscientious President either.