April 03, 2006

Supremes side-step 'enemy combatant' question.

By a 6-3 vote, the US Supreme Court refused to hear a case involving whether the feds can hold terror suspects indefinitely without charge in a military prison. The case involved Jose Padilla, who was designated an 'enemy combatant' by Dubya after his 2002 arrest on suspicion of plotting to explode a dirty bomb in the US. Padilla spent most of that time in a military brig, but was moved abruptly to a civilian prison last year after an appeals court sent the current case to the Supremes. [A coincidence, no doubt.] The feds also shifted the charge from terrorism to conspiracy to send money overseas to support violence.

In an unusual concurring opinion [full text here, PDF], Justice Anthony Kennedy explained the Court's reasons for turning away the appeal. According to Kennedy, Padilla has already received the relief that he was asking the courts to give him — getting out of that military prison and being formally charged with a crime. As a result, the Court was asking to deal with a hypothetical issue. Padilla's fear that the feds might change his status again is not sufficient reason for the Court to interfere now in a case that raises 'fundamental issues respecting the separation of powers' between the president and the courts. Kennedy was joined in his concurrence by Chief Justice John Roberts and Justice John Paul Stevens.

The Court's decision was blasted by Justice Ruth Bader Ginsburg, in a dissenting opinion [full text here, PDF] joined by justices David Souter and Steven Breyer. According to Ginsburg, Padilla's case is far from moot:

This case, here for the second time, raises a question “of profound importance to the Nation...: Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an “enemy combatant”? It is a question the Court heard, and should have decided, two years ago.... Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended. A party'’s voluntary cessation does not make a case less capable of repetition or less evasive of review. [Emphasis added]

While this magpie expected the Court to deny Padilla's petition, I'm very surprised by the strong divisions in the court evidenced by the two opinions issued today. And the configuration of the split is even more interesting. My guess is that the split in the court on this issue is very deep, and possibly acrimonious. From the perspective of the hard right justices, there may have been a 'danger' that five justices — Ginsburg, Breyer, Souter, Stevens, Kennedy — would decide against Dubya if the case came to Court. As a result, Chief Justice Roberts appealed to Kennedy and Stevens to oppose granting Padilla's petition in order to preserve peace on the court regarding an important issue of separation of powers.

These are just guesses, mind you, from a magpie who's definitely not a lawyer or an expert Supreme Court watcher. However, we did write about a number of Supreme Court cases during our career as a journalist, so we're not an ignoramus on this issue, either.

Putting all this speculation aside, where does today's Court action leave Jose Padilla? Back at square one, basically. Without another egregious denial of his constituional rights by the feds, the issue of his three-year imprisonment without charge will never be heard. And, in the meanwhile, the feds have learned that they can act illegally in terrorist cases, get the benefits of that illegal action, and then forestall court review by starting to act legally at the last minute.

Via Washington Post and Paper Chase.

Posted by Magpie at April 3, 2006 12:51 PM | Law/Justice | Technorati links |

Thanks for posting about this. I didn't see it reported, but had been wondering.

Posted by: Noemie Maxwell at April 3, 2006 02:08 PM