Padilla Case Heats Up

Padilla Case Heats Up


SCOTUSblog has the 411:

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.”

And yes, Padilla’s lawyers are trying to use the wiretaps to their advantage.

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.

And here’s some more from the Miami Herald, who carries the verbatim opinion of Judge Michael Luttig and his opinions on the administration’s credibility. And do note that Luttig was seen by some as being on the short list for the SCOTUS position vacated by Rhenquist’s passing.

Because of their evident gravity, we must believe that the consequences of the actions that the government has taken in this important case over the past several weeks, not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation ancillary to that war, have been carefully considered. But at the same time, we cannot help but believe that those consequences have been underestimated.

For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extant.


They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the president possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror — an impression we would have thought the government likewise could ill afford to leave extant.

And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today.

While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

And given his record as a conservative judge, this is quite a stinging rebuke from Luttig’s court.

By the way, I know a lot of people pronounce his name Pa-dee-yah, but he says it’s actually pronounced Pa-dill-ah.


  • BrianOfAtlanta

    Luttig is rebuking the administration, but not for being too tough. He’s rebuking them for being too easy on Padilla, for not keeping him in military custody indefinitely. I can see Luttig’s point – if the administration truly believes that it has the power to keep enemy combatants indefinitely, then do so and don’t send these mixed signals.

  • ford4x4

    I wonder why the US hasn’t declared that: When he bacame an enemy combatant, he revoked his own citizenship, and therefore isn’t afforded the same rights as an American citizen. There is no doubt that he joined Al-Qaeda, and Al-Qaeda can be defined as a “foreign army”.
    Joining a foriegn army (or being elected to office in a foriegn country)
    is grounds to have your citizenship revoked.

    Wouldn’t that have made this case a little less troublesome?