The Bush administration appeared this week to have circumvented what might have become a messy Supreme Court battle over its right to detain indefinitely US citizens it suspects of being terrorists.
By filing criminal charges against Jose Padilla, a US citizen who has been held for three and a half years in a Navy prison without charge as an “enemy combatant” on allegations that he wanted to detonate a radioactive “dirty bomb” in the US, the Justice Department said it was making “moot” a potential review of Mr Padilla’s case before the highest US court, which was in the process of considering whether or not to take the case.
But Mr Padilla’s attorneys say that, despite the changed circumstances, they will not drop their request to be heard before the Supreme Court, raising new questions about the legal minefield the Bush administration finds itself in as it tries to defend its tactics in the “global war on terror”.
The case is complicated, in part, because of the Justice Department’s refusal to clarify how the criminal charges against Mr Padilla affect his legal standing. The DoJ has only said Mr Padilla is no longer in custody as an enemy combatant.
That point has been seized on by Mr Padilla’s lawyers, who say that the White House has, in effect, retained the right to detain their client without charge, no matter what the outcome of his case is before a judge and jury.
“What is to stop them, if we go to trial and are successful, regardless saying: ‘He is still an enemy combatant’?” says Donna Newman, Mr Padilla’s attorney.
Ms Newman says the decision to charge Mr Padilla also does not resolve the essential question behind her case: does the president have the authority to detain individuals, especially US citizens, indefinitely?
Jenny Martinez, a professor at Stanford Law school who is also one of Mr Padilla’s lawyers, says the case does not pass the so-called “mootness” doctrine, the principle that the courts should only rule on unresolved “cases or controversies”. The Padilla case, she says, is an exception to the rule because it is capable of repetition yet has evaded review, an argument that could convince the four justices that would have to agree to hear the case to take it on.
David Rivkin, an attorney and former Justice Department official who has advised the Bush administration on terrorism cases, says the arguments are “nonsense”. He says the Supreme Court will not agree to hear the Padilla case because the nature of the complaint has been “substantially resolved”.
“In order to complain of something, it cannot be an abstract issue. So to say ‘he is still an enemy combatant’ does not give rise to something that can be challenged. You cannot complain about a hypothetical injury,” Mr Rivkin says.
Although he is a staunch defender of the administration’s detention policies, Mr Rivkin admits he is “personally troubled” by the decision to press charges against Mr Padilla, a move he thinks was clearly timed to avoid the case going before the court. “I think it represents a weakening of conviction that they were going to win [in the court] and I think it is foolish,” he says.
Backing down on the case, even implicitly, Mr Rivkin argues, weakens the Bush administration’s ability to argue that it is appropriate to hold individuals as enemy combatants in a time of war. Although Mr Rivkin believes the Supreme Court would have ruled in the administration’s favour, recent rulings appear to give weight to any concerns that the White House may have had about the strength of its case.
The Supreme Court ruled by a plurality in June 2004 that the White House could order US citizens to be held as “enemy combatants”, but said the state of war did not afford a “blank cheque” when it comes to the rights of US citizens.
A decision involving Yaser Hamdi, a US citizen who had been arrested while allegedly fighting for the Taliban in 2001 and who was held without charge, said the government had failed to follow proper procedures for his detention.
Mr Hamdi was released without any criminal charges last year and deported to Saudi Arabia, where he is also a citizen
The decision revealed that some members of the court, most notably Justice Antonin Scalia who is generally an ally of the Bush administration, disagreed strongly with the White House over its stance on enemy combatants. ”The very core of liberty,” Justice Scalia said, ”has been freedom from indefinite imprisonment at the will of the executive.”
The Justice Department has until December 16 to file its arguments to the court, but it may seek an extension.