The next major war-on-terrorism case, involving Jose Padilla, designated an “enemy combatant,” is moving along on separate tracks in two courts. The Supreme Court may act as early as next Monday on his attempt to get the Justices to review his challenge to his status and his indefinite detention, before the Fourth Circuit can rule.
The petition in 04-1342 seeks direct review of a ruling in February by U.S. District Judge Henry F. Floyd of Spartanburg, S.C., concluding that the President has no authority to designate and detain as an “enemy combatant” a U.S. citizen captured on U.S. soil.
Four Justices of the Court have already voiced their opinion that the President lacks the authority to order the prolonged, incommunicado detention of American citizens arrested in the U.S. They did so last year, when the Court ruled 5-4 that Padilla’s original challenge had been filed in the wrong District Court.
However, whether those four will press at this stage for review of Padilla’s new challenge, filed in Judge Floyd’s court, is most uncertain. Given that the Term is close to ending, there may be no urgency in taking on the case now.
The litigation is also moving along on an expedited schedule in the Fourth Circuit (docket 05-6396), on a regular appeal path by the Justice Department after its loss in Judge Floyd’s ruling. The latest development there was the filing on Monday of Padilla’s brief.
The Justice Department’s final brief is due June 21, and the Fourth Circuit has scheduled a hearing for July 19 in Richmond, VA. Conceivably, the case could be decided before the Supreme Court reassembles for a new Term in October. The Justice Department, in opposing immediate Supreme Court review, has said there will be plenty of time for the Justices to review the case during its next Term.
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