Wednesday, April 05, 2006

Padilla and War Powers

Jammed off the radarscope this week by the Tom Delay story was the latest chapter in the long and winding saga of Jose Padilla . On Monday, the Supreme Court announced it would not hear an appeal in Padilla's case, thereby averting a showdown over separation of powers among the three branches of federal government.

Padilla, a U.S. citizen, was arrested by the FBI in Chicago on May 8, 2002. He was suspected of being part of an al Qaeda plot to target high-rise buildings with a radiological "dirty bomb." On June 9 of that year, Padilla was declared an "enemy combatant" and turned over to the Department of Defense, which incarcerated him in a Navy brig in South Carolina. As an enemy combatant, he was denied access to a lawyer and the courts. On June 11, attorney Donna Newman filed a habeas corpus petition on Padilla's behalf with a U.S. District Court in New York that claimed the Bush administration had violated Padilla's constitutional rights to due process.

A series of appeals and counter appeals ensued. Administration legal guns like like James Comey argued that Padilla's detainment was perfectly legal in light of Mister Bush's constitutional authority as a wartime commander in chief and the powers granted to him by the Authorization for Use of Military Forces (AUMF) that Congress passed in 2001 days after the 9/11 attacks. Padilla's attorneys asserted that the administration's use of the AUMF to justify holding Padilla without formal charges or due process amounted to a bill of attainder, which is expressly prohibited by Article I of the Constitution.

Time passed. On September 9, 2005, the Fourth Circuit Court of Appeals ruled in favor of the government.
The Congress of the United States, in the Authorization for Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States on September 11, 2001…those powers include the power to detain identified and committed enemies such as Padilla…

The detention of petitioner being fully authorized by Act of Congress, the judgment of the district court that the detention of petitioner by the President of the United States is without support in law is hereby reversed.

The Fourth Circuit is widely considered to be the most conservative and Bush administration friendly appeals court in the country. Justice Michael Luttig, who wrote the Fourth Circuit's Padilla opinion, was under consideration for nomination to a seat on the Supreme Court.

On October 25, 2005, Padilla's attorneys appealed his case to the Supreme Court. The administration's deadline for filing arguments was November 28, but days prior to the deadline administration lawyers pulled a switch. On November 22, a federal jury in Miami indicted Padilla on charges that he had conspired to "murder, kidnap and maim" people overseas." The indictment made no mention of the original "dirty bomb" charge.

The administration asked the Fourth Circuit to withdraw its Padilla finding and have the prisoner turned over to federal custody. Justice Luttig refused, chastising the administration for using one set of facts to justify holding Padilla in military custody and another to charge him in a federal court.

On January 4, 2006, the Supreme Court overruled the Fourth Circuit and agreed to let the military transfer Padilla to Miami to face criminal charges.


Glenn Greenwald of Unclaimed Territory was among the many commentators who said the administration had pressed Padilla with criminal charges in order to avoid a constitutional face off in the Supreme Court that it knew it would lose. Some suggested that Chief Justice John Roberts had "suggested" to Attorney General Alberto Gonzales that if he moved the Padilla case to the civilian justice system, the Supreme Court could reasonably refuse to hear the appeal on the basis that it would become "hypothetical" once Padilla was no longer being held as an enemy combatant.

Few would question that Roberts is a friend of the administration. On July 15, 2005, as a member of District of Columbia Court of Appeals, he ruled in favor of the government in the terror related case of Hamdan v. Rumsfeld. That same day, he met with Mister Bush to discuss his nomination to the Supreme Court.

Others suggested that Luttig declined to play ball because his nose had been bent out of joint when he wasn't nominated to the Supreme Court.

Whatever the case, Padilla's legal team continued to push for a reversal of the Fourth Circuit's earlier decision. In December of 2005, they filed an appeal requesting the Supreme Court to resolve the Constitutional issues involved with the case, specifically on whether or not the AUMF constituted a bill of attainder and whether the term "enemy combatant" had any basis in U.S. or international law.

This was the appeal that the Supreme Court declined to consider on Monday by a 6-3 vote. It takes four votes for the court to hear an appeal.

Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer cast the dissenting votes, arguing that nothing prevented the government from reversing course again and placing Padilla back in military custody.

Justices Anthony M. Kennedy, John Roberts and John Paul Stevens said they had rejected the case because Padilla is no longer held by the military.

Nonetheless, the three justices warned the administration that the federal courts stand ready to intervene "were the government to seek to change the status or conditions of Padilla's custody" if he is acquitted in federal court.

So once again, we have "a something for everyone" decision from the Supreme Court. Padilla has access to due process, and the administration has been cautioned not to pull any more fast ones regarding his legal status.

But the Fourth Circuit's 2005 decision still stands.

Mister Bush can order U.S. citizens to be arrested on American soil and hold them indefinitely without being charged or facing trial.


  1. The part about Roberts telling Gonzales things on the sly is pure speculation without an ounce of evidence to back it up. You write "some have suggested" as weak justification for including it in your piece.

    As for the 4th Circuit ruling, the ruling is complete BS and it isn't binding anywhere except in that Circuit (and if the government continues to try this sort of thing I doubt it will even stand there for very long).

  2. This is an op-ed column, not a court of law. That Robert's interviewed with Bush for the SCOTUS job on the same day he ruled in Bush's favor in the Hamdan case is pretty much proven fact, and it strongly suggests that Roberts isn't above playing ball with the administration. Bush may not have known what was going on at the time, but Roberts sure did, and so did Gonzales and other admnistration lawyers, and they knew that Roberts knew that they knew. None of them seemed to have thought there was a conflict of interests, though me and a whole lot of other people think otherwise.

    Granted that Hamdan has a number of different angles from the Padilla case, both cases present challenges to presidential claims of authority, claims that Roberts backed in the Hamdan case.

    I think it's folly to dismiss the notion that Roberts didn't have some kind of communication with Justice over the Padilla appeals issue, even if those communications took place second hand through clerks.

    And I have no problems with the way I phrased those questions here.

    As to the fourth circuit decision, it has value to the administration as a quotable precedent, though I suspect that Kennedy's admonition implied that they better not try to use it in follow on cases.

  3. I think that this was a trump card, and it's now out of their hands. Kennedy made it pretty clear that this is the last time that the Bush administration had better try to hold an American citizen under these conditions or he's going to personally bitch slap him with the Constitution. But it was a tactical retreat for the administration, one that was VERY well executed, and one that I don't think is likely to be repeated.

    The decision still stands, but for what? You state that "Mister Bush can order U.S. citizens to be arrested on American soil and hold them indefinitely without being charged or facing trial." While this is true technically, I don't think that it would pass Constitutional muster, and with Kennedy's comment, it would probably be fast-tracked up to the Supreme Court by hook or by crook if it came to light that it happened again.

    It is upsetting, and it is scary, but I don't think that this retreat was a bloodless one.

  4. Sadiq,

    You make excellent points. I too think Kennedy sent a clear as a bell signal to the admin about holding citizens.

    Still, the 4th Circuit decision stands, and sounds ominously like the Supreme Court Hamdi decision wording--something to the effect that there is no bar to the POTUS holding a citizen as an "enemy combatant."

    We'll see how this works out.