Court refuses to hear Padilla appeal
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an “enemy combatant.” The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions. The case was Padilla v. Hanft (05-533).
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president’s wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and — for an extended period — without a lawyer. The Court, of course, took no position on whether that was the right result, since it denied review. The Second Circuit Court, at an earlier stage of Padilla’s own case, had ruled just the opposite of the Fourth Circuit, denying the president’s power to seize him in the U.S. and hold him. That ruling, though, no longer stands as a precedent, since the Supreme Court earlier shifted Padilla’s case from the Second to the Fourth Circuit.
The Administration was so eager to have the case out of the Supreme Court that it was willing to let the Fourth Circuit decision be erased, which would have been the result of a dismissal of the appeal on mootness grounds.
The victory for the government was not an unqualified one, however. The Court implied that Padilla has a legitimate concern that the government — which repeatedly changed its handling of his status — may again return him to military custody; it said that his case raised major issues — including the role of the courts in dealing with presidential power, and it told all courts to stand ready to react quickly if the government again shifted Padilla’s status or custody, in order to protect the writ of habeas corpus.. It even indicated that he would have a right to pursue a new appeal solely in the Supreme Court if his status were to change again. None of those comments would seem to be welcome to the Administration.
The most important of the two opinions issued with the order denying review was one that spoke for three Justices who did not vote to the case, but took the unusual step of issuing an opinion to justify the denial of review. They said that “there are strong prudential reasons disfavoring” Court review. Padilla is due to go on trial on criminal charges in civilian court, and “any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.”
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla “has a continuing concern that his status might be altered again.” That, however, “can be addressed if the necessity arises.”
Kennedy wrote that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That, he said, “also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla’s current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested.”
The Kennedy opinion, in covering so many bases — and, indeed, the effort the entire Court expended on this case — reflected the difficulty the Justices had had in deciding how to react to Padilla’s appeal. The Court examined the case eight times, including six times since Justice Samuel A. Alito, Jr., joined the Court in February, replacing retired Justice Sandra Day O’Connor. The Kennedy opinion was crafted in part, it appears, to attract the vote of Justice Stevens, who might have been thought likely to vote with the Court’s other moderate-to-liberal Justices to hear the case.
That the Kennedy opinion did not also attract the support of conservative Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas was a sign that it had gone too far to concede points in Padilla’s favor. They appeared to have silently voted against review.
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case. Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. “Nothing prevents the Executive from returning to the road it earlier constructed and defended,” she wrote. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.
The Court issued no decisions in argued cases Monday, but did grant a pair of cases that seek to clarify what kind of conviction for a drug crime can lead to deportation for an immigrant. The question is whether, if the conviction came under state law and is a felony, but would only be a misdemeanor under federal narcotics law, does that qualify as an “aggravated felony” that can lead to deportation. The Court consolidated two cases on that issue: Lopez v. Gonzales (05-547) and Toledo-Flores v. U.S. (05-7664). The cases will be heard next Term, in a one-hour argument. The Solicitor General urged the Court to hear the issue.
Why the somber tone? Why no speculation that this has implications for Hamdan?
Comment by Commentator — April 3, 2006 @ 11:20 am
The view that the Supreme Court can have something to say about Padilla, I think, shows that some Members of the Court don’t think that this is a real war. In a real war, the judiciary should have a very limited role. I harken back to the Civil War. Thousands upon thousands of American citizens were captured by Union forces. No one would have ever thought that the judiciary would have any say in their captivity. Now, it may be argued that those prisoners were under arms and under the command of an organized military. But so what, does that mean that people who engage in warlike activities (which the gov’t alleges Padilla was going to do) get more protection than those lawfully engaging in combat. Why should Padilla get more than Johnny Reb?
The answer, I think, is that people think of the GWOT as less than a real war.
Comment by federalist — April 3, 2006 @ 1:03 pm
The legal world has changed a lot since the U.S. Civil War, so applying precedents from then is an iffy business.
On the eve of the Civil War, the 14th Amendment which is the doctrinal bridge to apply constitutional rights to state courts didn’t exist and the black letter law was that the Bill of Rights did not apply to the states. The only appellate review of federal criminal convictions was via habeas corpus — direct appeals of federal criminal convictions didn’t exist (and the 6th Amendment had not yet been interpreted to include a right to state provided counsel). Trial court decisions upholding the constitutionality of a federal law were outside the jurisdiction of the U.S. Supreme Court. The First Geneva Convention wasn’t signed until 1864, and much of the modern law of war did not exist. There was no UCMJ. Federal statutes had been held unconstitutional only half a dozen or so times since the founding of the Republic. Immigration laws weren’t invented until 1875. Telecommunications were limited to the telegraph, and expectations of privacy regarding telegrams were not well settled.
The Civil War also presented questions uniquely because it was a civil war. Congress was without delegates from many states. The legality of the decision of states to leave the union was not a settled issue prior to the war. The citizenship of residents of Confederate states was not obvious — when, if ever, did you cease to be a U.S. citzen — when your state declared an intent to leave, when you swore a loyalty oath, when you joined the Confederate Army (or were drafted)? Much of U.S. soil was a battleground in a far more elementary and straightforward way.
Comment by ohwilleke — April 3, 2006 @ 2:09 pm
yes, the legal landscape has changed. I guess the fact that it is used to justify court intervention in military affairs creates issues as to the legitimacy of some of the changes. No offense, but I don’t want Supreme Court Justices telling elected officials how to fight wars.
In any event, let’s say that there were 5,000 padillas, i.e., that terrorists had a plan to overwhelm the US with thousands of terrorists to launch a terror war inside the US. And let’s say that they actively recruited thousands of US citizens. Would anyone think that the courts would get involved–especially if bombs started going off?
Comment by federalist — April 3, 2006 @ 2:51 pm
I don’t think anyone has a problem with the government detaining those 5000 alleged Padillas (remember, nothing is proven yet). However, what would likely happen is the government will detain not just those 5000, but 20,000 alleged terrorists. Let’s say 1 year has passed, and there are rumors that many of thet 20,000 aren’t terrorists, but were mistakenly rounded up. Do they have no recourse then? Is there any avenue that will allow these US citizens to confront the evidence against them? And how do you define war? How do you define those who seek harm against the US? What if Bush decides to round up 50,000 protesters for alleged aiding the enemy? So you’re saying the government has absolute power to designate any citizen as an enemy, and detain them indefinitely? There must be some higher threshold for a government to detain citizens of this country indefinitely, and some method to challenge that threshold, and it seems reasonable that the SCOTUS is that avenue. If not, I fear for this democracy.
Comment by vega77 — April 3, 2006 @ 3:49 pm
I like today’s denial of cert. in Padilla because the only time we can tell the vote on a cert. petition is when three justices note their dissent.
Comment by rodgerlodger — April 3, 2006 @ 5:11 pm
In any event, let’s say that there were 5,000 padillas, i.e., that terrorists had a plan to overwhelm the US with thousands of terrorists to launch a terror war inside the US.
And let’s say they were all in federal custody, like Padilla.
And let’s say they were all U.S. citizens arrested on U.S. soil, like Padilla.
The Constitution describes the crime of treason, doesn’t it? Or did the Founders imagine that, once detained, those citizens could be summarily held indefinitely at the king’s whim?
(Excuse me, I meant to write “president.”)
Comment by Anderson — April 3, 2006 @ 7:42 pm
federalist: If the enemy were overwhelming us with citizens recruited to act as terrorists, there is a remedy: Congress can vote to suspend habeas corpus. We can then have a political debate as to whether we think that was a good idea. The thing is, with Padilla, the administration (which I generally support) has skipped that step.
Comment by Brandon — April 3, 2006 @ 7:53 pm
I don’t think that the Founding Fathers thought that a treason prosecution would be the exclusive remedy for people engaged in warlike activity against the US, particularly if such people were conducting warfare in a manner outside of the laws and customs of war. They hanged pirates in those days, and terrorists are like modern day pirates.
In any event, my points are as follows:
1) I think the fact that the judiciary is getting involved in Padilla and the GTMO detainees in part reflects the smallness of the numbers involved. If there were thousands upon thousands of these guys, the courts simply could not handle it. A corollary to this observation is that some of the Justices and the pundits do not believe that this is a real war.
2) I think that in our history, courts have generally stayed out of warfighting. They are getting involved now, and I am not sure that the intervention (regardless of how one feels about Padilla) is justified from a constitutional standpoint. Like I said, no one would have thought that Johnny Reb would get a hearing. Does Padilla get one because he was out of uniform and not following the laws of war–an odd result. And if you think that the courts have the authority to deal with the issues raised by Hamdan and Padilla, do you think that they could get involved with rules of engagement, or other warfighting efforts. If not, where are the clear logical stopping points for court activity? The citizen/non-citizen distinction doesn’t seem to matter, as many of these guys are not US citizens. The battlefield issue is not a good one, as the battlefield is worldwide in the war on terror (and not that an artificial limitation of the battlefield would in effect reward these terrorists for engaging in warlike acts outside of acceptable rules of warfare). The fact that “innocent” people may be swept up is unconvincing as well–what about innocent people that the military decides to bomb and kill? It happens in war. Do those people have standing?
3) There’s also a judicial competence issue. Judiciaries don’t fight wars–they decide cases, and they uphold rights. War is messy. Rights are a focus, but not the main focus. While we would all agree that it’s better to let 9 guilty walk free such that one innocent does as well, that’s not the calculus in war.
4) No one, I think, has thought through the ramifications of such judicial oversight. American fighting men are not fools. Anything that makes the possibility of the “bad guys” going free greater is likely to incentivize not taking the “bad guys” prisoner in the first place. American forces have already had to deal with people released from GTMO. Now, it’s unfair to blame the courts for that, but, to the extent that the war is prosecuted with an eye toward judicial oversight, it is certainly possible that people who would have been captured would otherwise be killed. And before everyone jumps all over me, think about this–you’re a soldier, and you know that for whatever reason half of the people you capture will be released and say 10% of those folks will ultimately be fighting you again (i.e., killing your buddies), if you could legally kill some of these guys (i.e., consistent with the rules of engagement), wouldn’t you at least think about it? I would, and I am an ex-military officer. The issue is not cold-blooded murder, but protecting your own. Fortunately, we have not heard about any released person from GTMO being successful killing an American, but the possibility certainly exists since we have recaptured some of these guys, but how would any of you like to explain to a grieving mother that we had caught the guy originally, but we released him because of international pressure or concerns about what the judges would think? I wouldn’t. This is not merely a theoretical possibility.
5) Given the problems with judicial oversight, isn’t it possible that the solution lies with politics. Could it be that these guys are better served by the fact that the king here is subject to election, as is Congress?
Comment by federalist — April 3, 2006 @ 9:22 pm
The overarching problem is not that the gov’t can’t make a case for treason against any given citizen detainee, but that they don’t have to: under the rule of Padilla, gov’t can indefinitely detain a US citizen without charges, prosecution, access to counsel, or any other basic rights. That’s what distinguishes this from the Civil-War or battlefield situations: if the gov’t can declare any place a “battlefield” where detention is monitored neither by US Constitution nor Geneva Convention, the concepts of habeas corpus and constitutional government are direly threatened.
And while I understand federalist’s points about how judicial oversight seems odd in a military setting, there are two easy answers. One, judicial oversight exists already, in the form of military discipline (overseen by judges) that punishes e.g. murder on the battlefield. Two, the US judiciary is quickly gaining experience in dealing with these claims, esp. since passage of the Alien Tort Claims Act, which permits civil suits for violation of international law. See, e.g., Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1090 (S.D.Fla. 1997); In re Extradition of Suarez-Mason, 694 F. Supp. 676 (N.D.Cal. 1988).
Comment by GeorgeCarr — April 4, 2006 @ 2:27 pm
I doubt we will face 5,000 Padilla-like individuals, but the problem, in my view, arises from the conflict between warmaking and the rights accorded defendants under normal rules of criminal evidence. If instead of a dirty bomb attack Padilla had attempted to rob a convenience store, the police, not the military, would have detained him, and then said “You have the right to remain silent,…” - the Miranda Warning. Obviously, in dealing with a member of a wider terrorist organization, the last thing we want them to think is that they have the right to remain silent, have a lawyer or anything else. In this case Padilla is said to have confessed, but of course he was accorded none of the rights normally given to criminal defendants because he was declared an enemy combatant. So the alleged confession, and any other purported evidence, must be excluded in court. It isn’t like there is any reason to think that civilian courts are appropriate for this; European prosecutions of terrorsts have gotten tied up in knots over procedural issues.
Giving guilty people rights makes it harder to prosecute them, and that is the price we accept to avoid convicting innocent people. That terrorists pose a far greater threat than even a fairly lethal common criminal, that affects the balance of interests. I believe that persons designated enemy combatants should receive some due process, but given the nature of al-Qaeda and similar groups, the degree of due process cannot be the same as for the guy who robs the convenience store. The war against terror will simply not be won that way.
Comment by Kirk H. Sowell — April 4, 2006 @ 10:12 pm