Padilla asks Court to step in
on Apr 7, 2005 at 6:29 pm
Lawyers for Jose Padilla, a U.S. citizen held for nearly three years as a suspected “enemy combatant,” on Thursday asked the Supreme Court to hear his challenge to detention before the Fourth Circuit acts on a pending government appeal.
In a petition for review (helpfully linked by Howard Bashman’s How Appealing blog), Padilla’s defense team urged the Court to hear and decide this issue: “Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?” (The case, not yet assigned a docket number, is Padilla v. Hanft.)
On February 28, a federal judge in Spartanburg, S.C., ruled that President Bush lacked constitutional authority to hold a U.S. citizen as an “enemy combatant” for an indefinite period, without legal rights and without criminal charges filed. Padilla, U.S. District Judge Henry F. Floyd ruled, was entitled to be released from military custody. The judge also declared, however, that the federal government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as “a material witness” in a terrorism investigation.
The Justice Department has appealed that ruling to the Fourth Circuit. On Wednesday, Judge Floyd granted the Department’s motion to put his decision on hold pending the appeal.
Attempting to move the case forward more rapidly, Jenny S. Martinez, a Stanford law professor and Padilla’s lead counsel, moved directly to the Supreme Court, saying the case raised a “question of imperative public importance.”
The Padilla petition notes that three federal courts have already confronted the basic question of presidential power at stake, and did so in Padilla’s case, and that the Supreme Court itself had the case briefed and argued before sending it last June 28 to a different District Court for review. Thus, the constitutional issue “has been well vetted in the federal courts. This Court is not likely to benefit further from another Court of Appeals opinion.”
It adds: “Any benefit that an opinion from the Fourth Circuit might provide is more than outweighed by the costs of any further delay in this Court’s final adjudication of the issue. Padilla has now spent almost three years in solitary confinement in a military brig.”
If the Justices do not review the case ahead of the Fourth Circuit, according to the petition, the government would be in position, if it won at that level, to bring criminal charges against Padilla and thus moot the issue to avoid Supreme Court review. That, the petition says, would create a system of “de facto Executive detentions.”
Padilla’s attorneys sought to persuade the Court that, while Padilla himself is entitled to prompt resolution of the presidential powers issue, a question going beyond his particular circumstance is also at stake.
Here is the argument on that point: “Since Padilla’s military seizure from the civilian prison in which he was held, federal terrorism prosecutions have occurred under explicit or implicit Executive threats to declare criminal suspects enemy combatants and detain them in military prisons without criminal trial…The Executive utilizes uncertainty over the extent of its military power in negotiations over guilty pleas…The threat of an enemy combatant designation has loomed over many domestic terrorism prosuections.”
Uncertainty about presidential authority, the petition contends, “creates a very real danger of Executive overreach, exemplified not only by the current use of enemy combatant status but also by the very real possibility that many more citizens could be detained as enemy combatants should the nation face another moment of acute crisis like September 11, 2001.”
