Reading Padilla’s Tea Leaves
Even if it were not already evident from the Hamdan proceedings that Justice Kennedy has the power to determine the constitutional law of the war on terrorism, today’s denial of certiorari in Padilla confirms it. It is striking that Justice Kennedy’s opinion is joined by the Chief Justice and Justice Stevens: Both sides of the Court are understandably eager to woo Justice Kennedy’s vote, which of course means that Justice Kennedy has a great deal of leverage in these cases. (For a sense of where he might be on the merits of some of the more important questions in the Terms to come, see his opinions in Alvarez-Machain, Rasul and Chavez v. Martinez.)
In Padilla, evidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens’s decision not to provide the fourth vote for certiorari (although it’s certainly possible that Justice Stevens simply agrees with Justice Kennedy that consideration of the merits would be premature).
The Administration might be heartened by the Court’s decision not to review Padilla’s military detention. (Recall that in the Hamdi and Padilla cases in 2004, five Justices (Stevens, Scalia, Souter, Ginsburg and Breyer) already signaled that they thought Padilla’s detention was unlawful — and that doesn’t even include Justice Kennedy, who was silent on the question.) The Administration’s shell game, including the ploy of moving Padilla to the civilian justice system just as the case was teed up for the Court, therefore might pay off. But as Lyle notes, a careful reading of Justice Kennedy’s opinion suggests that they’d better be careful about overreaching.
If the Administration were to attempt to return Padilla to military custody — for example, after an acquittal on the criminal charges — or if the Defense Department were to detain indefinitely another citizen captured in the United States, Justice Kennedy has sent a strong signal that such a move would be met with disfavor:
Were the Government to seek to change the status or conditions of Padilla’s custody, [the district] court would be in a position to rule quickly on any responsive filings submitted by Padilla. In such an event, the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised. Padilla, moreover, retains the option of seeking a writ of habeas corpus in this Court.
This warning has significant implications, not only if Padilla is acquitted, but also before his trial. So long as the Government could threaten Padilla with a return to indefinite military detention, it held a powerful stick in plea negotiations, which could be used to induce Padilla to plead guilty, and/or to weaken the terms of any plea agreement. But in light of Justice Kennedy’s shot across the bow, Padilla has some leverage that he otherwise might not have had.
It looks to me that Hamdan is screwed.
Comment by Commentator — April 3, 2006 @ 11:42 am
There are still lots of ways that these could resurface and be presented squarely to the U.S. Supreme Court.
In the criminal action:
1. A motion to dismiss for want of a speedy trial, arguing that one should count from detention in Chicago.
2. The issue of whether Padilla would get credit for time served.
3. In the context of how the enemy combatant declaration should be treated in voire dire, argument by counsel, and permissible testimony. Likewise, who is properly dismissed for cause?
4. The admissability, if any, of material obtained from Padilla while detained, or otherwise. In particular, fruit of the poisonous tree discovery.
5. Would Padilla profit from introducing “changing story” evidence on the part of the government’s justification for his detention to show that this is just one more changed story.
6. What evidence will be allowed regarding his detention should he choose to testify at trial?
7. If an enemy combatant threat is raised in plea negotiations, would that make the issue ripe for the Miami judge to decide the legality or ethicality of such a threat?
8. In a sentencing hearing, the government would obviously like to show that Padilla was a really bad guy with evidence beyond the scope of what the jury heard. To what extent would the sentencing judge allow that?
In a civil case:
1. It would seem that even if he is convicted, Padilla would have a bona fide basis for a 1983 claim in connection with his prior detention. Is that precluded by the 4th Circuit ruling?
Comment by ohwilleke — April 3, 2006 @ 1:49 pm
In answer to Ohwilleke’s question, I do not believe the Fourth Circuit decision precludes further challenge to Padilla’s enemy combatant designation. The Fourth Circuit’s decision was premised on Padilla’s concession (for purposes of his sj motion) that he had taken up arms against the United States. Under the Hamdi decision, Padilla is entitled at some point to a hearing at which he can challenge the factual predicates underlying his detention. Indeed, given the Supreme Court’s faillure to declare his case moot, I don’t see why he is not permitted to proceed immediately with his habeas petition in the S.C. district court, in order to raise those factual issues.
Comment by Richard Samp — April 3, 2006 @ 3:24 pm
Commentator, Padilla’s case is just too weird to draw such broad conclusions from it, is my humble opinion.
The Court’s reluctance to get into a firefight on this case may derive from its knowledge that it already has another firefight pending.
Comment by Anderson — April 3, 2006 @ 6:05 pm
“It is striking that Justice Kennedy’s opinion is joined by the Chief Justice and Justice Stevens: Both sides of the Court are understandably eager to woo Justice Kennedy’s vote, which of course means that Justice Kennedy has a great deal of leverage in these cases.”
Does this opinion simply indicate Justice Kennedy’s central position on these issues, or do you think that the joining by the two other Justices is actually a part of the attempt to “woo” Justice Kennedy’s vote?
Does anyone think there is anything we can draw from the fact that, at least in some respect, the Chief Justice voted separately here from the conservative votes of Justices Scalia, Thomas, and Alito?
Comment by iuris causa — April 4, 2006 @ 2:57 am
“…or if the Defense Department were to detain indefinitely another citizen captured in the United States, Justice Kennedy has sent a strong signal that such a move would be met with disfavor”
How do we know there are not already other citizens captured and detained? The administration denied Padilla the ability to communicate with anyone. Padilla’s detention became public knowledge when he was removed from police custody and out of the jurisdiction of a criminal court, as I remember. If, say, federal marshals detained a citizen without charging him, and threw him in the brig, how would anyone know? As I understand it, the President has claimed the power to do this.
Comment by SCJ — April 5, 2006 @ 6:54 pm