The Mix

The update on Padilla

A critical precedent still delayed as the DoJ takes the courts for a ride…
The case of Jose Padilla has been shuffling from one court to another. Deemed an "enemy combatant, Padilla was kept in a naval brig for over three years without charges. When a U.S. District judge ruled that the government either had to charge or release Padilla, the DoJ insisted that the enemy combatant status was necessary for the security of the nation and appealed the decision:
"the government will suffer irreparable harm absent a stay of the court's order. The President… has determined that petitioner [Padilla] 'represents a continuing, present and grave danger to the national security of the United States' and that his military (as opposed to civilian) detention is 'necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other government personnel, or citizens."
The courts bought the argument… but once Padilla appealed to the Supreme Court, the Bush administration quickly changed its tack. Padilla was put into civilian custody and charged. And while Justice Department officials were throwing around allegations that Padilla was planning to blow up hotels and apartment buildings with a "dirty bomb" -- those charges weren't anywhere to be found in the indictment.

Why the sudden shuffle of this too-dangerous-for-a-regular-jail criminal? Well, the Bush administration would be in quite the pickle if a Supreme Court ruling found that holding a human being without charge for an indefinite period of time was not so legal.

The move shows the incredible contempt this administration has for the rule of law -- and implicitly, the awareness that their conduct in the war on terror is simply not legal. Unfortunately, the Padilla shuffle (vb: to manipulate the legal system in order to prevent justice from being served) worked. The Supreme Court refused to rule on Padilla's case, because "Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected." The case, arguably, had become moot or "hypothetical". But Justices Souter, Ginsburg, and Breyer still wanted to go forward with the case -- arguing that the questions of executive power were important enough to merit a decision. The usual suspects -- Alito, Scalia, and Thomas were against hearing the case.

While Justice Kennedy denied to grant Padilla's writ, he acknowledged the sketchy nature of the DoJ's tactics in the case and encouraged the U.S. District Court in Florida, currently serving as the site of Padilla's new criminal trial, to keep a close eye on the DoJ's maneuverings. With good reason: If charges are dropped against Padilla, there is nothing stopping the Bush administration from re-classifying him as an enemy combatant and throwing him back in the brig.

That's right, the president is going to go ahead and let a U.S. court have their little "trial" and then they'll do with Padilla what they see fit.

Kennedy writes, "Padilla's claims raise fundamental issues respecting the separation of powers."

Yeah. No kidding. Judges have time and again and time and again said the same damn thing.

Kennedy states in his opinion that among the concerns raised by Padilla's case is "the consideration of the role and function of the courts."

Yes, the courts, Mr. Kennedy. That's you! This administration is challenging your powers. Some backbone, please?
Onnesha Roychoudhuri is an assistant editor at AlterNet.
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