http://www.cato.org/dailys/08-09-04-2.html
August 9, 2004
What the Supreme Court Really Said about Jose Padilla
by Robert A. Levy
Robert A. Levy is senior fellow in constitutional studies at the Cato
Institute.
Jose Padilla will have to be released -- unless the government somehow
conjures up charges of treason or criminal acts. To be sure, the Supreme
Court's June 28 opinion in Rumsfeld v. Padilla literally said nothing of
the sort. In fact, it didn't reach the merits of the case at all. Still,
the inescapable conclusion, based on the Court's same-day opinion in Hamdi
v. Rumsfeld, is that Padilla will soon be charged or freed.
Here's what's happening: Jose Padilla is the U.S. citizen who supposedly
plotted to detonate a "dirty bomb" and use natural gas to blow up
apartment buildings in Washington D.C., New York and Florida. Since his
capture not on the battlefields of Afghanistan or Iraq, but at Chicago's
O'Hare Airport he hasn't been charged with any crime. Yet since June
2002, Padilla has been held incommunicado in a South Carolina military
brig indefinite detention, without access to a lawyer until the
government acceded to outside pressure in March 2004.
Essentially, the Supreme Court ducked its opportunity to decide whether
Padilla's detention is permissible. Chief Justice Rehnquist, joined by his
four conservative allies, held that the head of the military brig in South
Carolina, Commander Marr, not Defense Secretary Donald Rumsfeld, was the
person whom Padilla should have sued. Marr was Padilla's immediate
custodian, and she was not within the jurisdiction of the New York federal
courts, where Padilla filed his case. That rule, said Rehnquist, is to
prevent "forum shopping" by detainees seeking release under the habeas
corpus statute. The result: Padilla had to start over; he has now re-filed
his petition in South Carolina.
So what happens next? Some news reports indicate that the Justice
Department is planning to indict him. After all, the government claims
that Padilla was detained because he was an enemy combatant who (1) was
"closely associated with Al Qaeda"; (2) had engaged in "war-like acts,
including conduct in preparation for acts of international terrorism"; (3)
had intelligence that could assist the United States to ward off future
terrorist attacks; and (4) was a continuing threat to U.S. security. The
government did not allege, however, that Padilla was actually a member of
Al Qaeda.
Then, just prior to the Supreme Court's decision, the Justice Department
issued a report on Padilla's interrogation. Supposedly, Padilla admitted
that he attended Al Qaeda training camps and discussed both a bomb and the
use of natural gas to blow up apartment buildings. Bear in mind that
Padilla had no lawyer present, so the evidence would not be admissible in
court. The government said he was not mistreated, but would not confirm
that the interrogation complied with the Geneva Convention. Further, the
department presented no indictment that Padilla could challenge. His
appointed lawyer, who met Padilla for the first time in March, was under a
gag order. He could not even say if Padilla disputed the allegations. In
other words, no defense was possible. But according to a footnote in the
report, Padilla denies sworn allegiance to, or being part of, Al Qaeda;
denies the bomb plot; and says he discussed a plot only to avoid fighting
in Afghanistan.
I doubt that the government has a compelling case, or the Justice
Department would have filed charges long ago. Still, charges will probably
be filed, if only because the logic of the Hamdi case suggests that the
government's alternative, like it or not, is to release Padilla. Hamdi, of
course, is another U.S. citizen, also detained incommunicado without
charges for two years. The major difference is that he was reportedly
apprehended on the battlefield in Afghanistan, not at O'Hare airport where
Padilla was captured.
On June 28, the same day as the Padilla decision, Justice O'Connor
released her plurality opinion in Hamdi. Joined by Justices Rehnquist,
Kennedy, and Breyer, she held that the government "may detain, for the
duration of these hostilities, individuals legitimately determined to be
Taliban combatants who engaged in armed conflict against the United
States." Justice Thomas joined the plurality with respect to that holding.
He actually filed a dissenting opinion, but his conclusion tipped even
further toward executive power. He argued that "this detention falls
squarely within the federal government's war powers, and we lack the
expertise and capacity to second-guess that decision."
Therefore, a majority of the Court clearly authorized Hamdi's detention.
Why then do I predict Padilla's release if he's not charged? For four
reasons. First, the implication of the Hamdi plurality opinion is that the
ongoing war on terror would not justify detention once active hostilities
in Afghanistan ended. Arguably, they have ended. Second, and more
compelling, the Hamdi plurality said that his detention was permitted to
prevent combatants from returning to the battlefield. But Padilla did not
come from the battlefield. He was not one of the "Taliban combatants who
engaged in armed conflict against the United States."
Third, the Hamdi plurality allowed executive detention only in light of
Congress' post-911 Authorization for Use of Military Force, which
satisfied the following mandate from a 1971 statute, the Non-Detention
Act: "No citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress." According to the Hamdi
plurality opinion, the post-911 resolution triggered the president's
commander-in-chief power to apprehend enemy soldiers in a zone of active
combat. Perhaps so. But the president surely cannot order the
imprisonment, without charge, of an unarmed non-soldier far from active
combat, especially a U.S. citizen on our own soil. In fact, Justices
Souter and Ginsburg filed a separate opinion in Hamdi and concluded that,
despite the post-911 resolution, even Hamdi's detention violated the
Non-Detention Act. A fortiori, so did Padilla's.
Fourth, considering the Padilla and Hamdi decisions together, if Padilla
returns to the Supreme Court, he should have five solid votes for release.
One vote would come from Justice Scalia. He dissented in Hamdi, joined by
Justice Stevens, and concluded that Hamdi is entitled to release, unless
he is charged with a crime or treason, or Congress suspends habeas corpus.
The remaining four votes for Padilla's release would come from the four
Padilla dissenters - Justices Stevens, Breyer, Souter and Ginsburg - who
wanted to reach the merits of that case. They argued that "executive
detention of subversive citizens, like detention of enemy soldiers to keep
them off the battlefield, may sometimes be justified to prevent persons
from launching or becoming missiles of destruction. It may not, however,
be justified by the naked interest in using unlawful procedures to extract
information. Incommunicado detention for months on end is such a
procedure." Padilla's detention, said the dissenters, was a "form of
torture," like the Star Chamber.
Interestingly, spokesmen for the administration are spinning the Hamdi
case as a victory for executive power. Nothing could be further from the
truth. Earlier, the U.S. Court of Appeals for the Fourth Circuit, in an
opinion by conservative Judge J. Harvie Wilkinson, rejected the
government's primary argument: that the courts cannot "second-guess" the
military's enemy combatant determinations. Even the Defense Department has
now backed off that argument. In the Guantanamo case, the government
conceded that habeas corpus jurisdiction would have existed if a Gitmo
detainee were a U.S. citizen. Now, in Hamdi, the Supreme Court has
rejected the government's fallback argument: that all the government has
to produce is "some evidence" to support its enemy combatant designation.
According to the Hamdi plurality, the detainee gets a lawyer and a fair
opportunity to rebut the government before a neutral decision maker.
Contrast that with President Bush's executive order on military tribunals,
which asserted that a detainee "shall not be privileged to seek any remedy
.... directly or indirectly ... in any court of the United States."
Finally, administration supporters ask this question: Suppose President
Bush had released Padilla, who proceeded to blow up parts of New York. No
doubt a number of the administration's critics would have sought Bush's
impeachment. Obviously, that same dilemma exists whenever anybody is
released for lack of evidence, and then commits a crime. In the case of
suspected terrorists, the stakes are immense. So a powerful argument can
be made for changing the rules - tilting toward national security even
though some civil liberties might be compromised. But if we do change the
rules, the process cannot be unilateral implemented by executive edict
without either congressional or judicial input. And it cannot be law
on-the-fly, with no knowledge of the rules by anyone other than the
executive officials who are responsible for their enforcement.
Padilla may deserve the treatment he is receiving--maybe worse. That isn't
the point. When American citizens are taken into custody, they have, at a
bare minimum, the right to retain an attorney. Then an impartial court,
not the president, should make the ultimate decision as to whether the
arrest and imprisonment comport with the Constitution. In Padilla's case,
five justices now say his ongoing detention is unacceptable. That's why
Padilla must be charged or released.
This article appeared in Legal Times, August 2, 2004, under the title
"Will They Let Padilla Go?"
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