Padilla tells Court of “manipulation”
on Dec 27, 2005 at 7:36 pm
Attorneys for terrorism suspect Jose Padilla put before the Supreme Court Tuesday a full account of the shifting strategy of the Bush Administration in dealing with Padilla, seeking to persuade the Justices that the government is blatantly attempting to manipulate the courts to gain more power in the war on terrorism.
Answering the Justice Department argument that Padilla’s appeal to the Supreme Court (Padilla v. Hanft, 05-533) is now moot and should be denied, his defense team said the case has become an even more significant test of whether the courts can prevent “an unchecked Executive Branch.” Bolstered by a new ruling by the Fourth Circuit suggesting that his appeal is worthy of Supreme Court review, Padilla’s lawyers said the case “raises questions of profound constitutional importance about the government’s military power over citizens in the homeland.”
To drive the point even harder, the new reply brief became the first document to inform the Court about the spreading controversy over the Administration’s use of secret, no-warrant wiretapping aimed at some communications by Americans inside the U.S. during searches for terrorist activity.
Perhaps the Justices, at least some of whom read and watch the news, already had become acquainted with the deepening political and constitutional controversy over domestic spying and the sweeping new claims by the White House and Justice Department of presidential wartime authority. But Padilla’s lawyers left nothing to chance, turning a formal legal document into something of an indictment of alleged presidential excesses that they suggested are jeopardizing constitutional checks and balances.
Ordinarily, a reply brief in a pending Supreme Court case is little more than a move to claim the final say on the issues at stake, perhaps cleaning up some loose ends of argument. But so much has happened in the 11 days since the government urged the Court to deny review of Padilla’s case that the atmospherics — and perhaps the very substance — of the case may have changed markedly.
When the government submitted its last filing in the Court in the case, it said that “intervening events have, at a miniumum, seriously undercut” the basis for Supreme Court review. The “intervening events” it discussed were President Bush’s decision to have Padilla transferred out of military jail to civilian authorities, to stand trial on criminal charges unrelated to his designation as an “enemy combatant.” The government seemed confident, at that point, that the Fourth Circuit would go along, releasing Padilla from a Navy brig and wiping out the decision that Padilla is challenging in his Supreme Court appeal — a precedent that, although it went against Padilla, must remain intact if his appeal is to go forward.
But there have been other “intervening events” since that government filing in the Supreme Court on Dec. 16, and Padilla’s reply brief brought the Court up to date on those to support his argument that the case should go forward before the Justices. (The reply brief can be found here.)
The Fourth Circuit, in a surprisingly harsh rebuff to the Administration, on Dec. 21 kept intact the ruling that Padilla is challenging, refused to order Padilla’s release from military custody, scolded the government for giving the appearance of manipulating the courts, and. in essence, endorsed the importance of Supreme Court review of the case. “We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court,” the Circuit Court said.
The Padilla defense team passed on that ruling to the Supreme Court, along with the reply brief Tuesday. They also appended their own brief in the Fourth Circuit laying out, step by step, the shifting position of the government that they — and now the Fourth Circuit judges, too — regard as evidence of manipulation of the judiciary.
They also acquainted the Court with the domestic spying controversy that has now boiled up. That has grown into a high-stakes checks-and-balances dispute. It was stirred up initially by The New York Times’ revelations this month that the President in 2002 “secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” The Times’ story led the President himself to publicly acknowledge the substance of that report, and also led to a flurry of public claims by the President and his aides that they did not need authority other than the President’s own “inherent power” to order the domestic surveillance.
In Tuesday’s filing, Padilla’s team argued that “the government continues to defend [its] sweeping view of the president’s power to substitute military rule for the rule of law, and seeks now to expand it further, arguing that the very authorities that it says justify the indefinite detention without charge of citizens also justify widespread spying on citizens without judicail warrant or Congressional notification. Unless this Court grants review now, the Padilla precedent will ‘lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need,'” the brief said, quoting from the late Justice Robert H. Jackson in 1944.
As of Tuesday night, the Court had not yet scheduled Padilla’s case for consideration at a Conference of the Justices. It apparently will not be considered at the Jan. 6 Conference, but may be at the private session on the 13th, now that all the legal filings in the case are in.
