SCOTUS avoids tiff with Bush administration

Today the SCOTUS backed down over a possible showdown with the Bush administration by refusing to hear "dirty bomber" Jose Padilla's challenge that he was detained without charges for too long. The court refused to hear the case because Padilla was finally charged with a crime, just days before the government would have been forced to present a brief to the justices about his detention.

The refusal to hear the case is important because, in effect, the court is dodging whether the Bush administration's "war" tactics are legal.

Or, as Justice Ruth Bader Ginsberg wrote, in dissent:

"This case . . . raises a question of profound importance to the Nation," Ginsburg wrote. "Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant' "?"It is a question the Court heard, and should have decided, two years ago," she said. "Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

"Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended," she wrote. "A party's voluntary cessation does not make a case less capable of repetition or less evasive of review."

I wrote about this case some months ago on another site (now defunct), but I thought it was worth posting again. Here it is:

The "Dirty Conspirer" just doesn't have the same ring (November 23, 2005)

Yesterday, the Bush administration indicted “dirty bomber” Jose Padilla on charges of conspiracy to commit acts of terror abroad. Not only are the charges different than what the administration originally accused him of, but also allow the administration to avoid presenting a brief to the U.S. Supreme Court, due Monday, arguing that the court does not need to see Padilla’s challenge to his detention.

Still, the real news is that the Bush administration is desperate to avoid legal challenges to its self-proclaimed authority to hold terror suspects indefinitely without a trial. The New York Times notes:

The Supreme Court has already accepted one case this month concerning the scope of the president's power to fight terror. That one involves whether he has the authority to try detainees held at Guantánamo Bay, Cuba, for terrorist offenses before military commissions there. The administration had vigorously urged the court not to hear the case.

The Times articles also points out,

The government could redesignate Mr. Padilla as an enemy combatant if he was found not guilty at his criminal trial. As long as the government does not disclaim that right…the case is, in the legal jargon, "capable of repetition yet evading review"…

Get it? The administration can slap the “enemy combatant” status back on Padilla and keep him in jail until they’re forced to legally defend their actions before the Supreme Court, then they can charge him with something else, and so on. A Times editorial sees light at the end of the tunnel in the Padilla case:

The Padilla case was supposed to be an example of why the administration needs to suspend prisoners' rights when it comes to the war on terror. It turned out to be the opposite. If Mr. Padilla was seriously planning a "dirty bomb" attack, he can never be held accountable for it in court because the illegal conditions under which he has been held will make it impossible to do that. If he was only an inept fellow traveler in the terrorist community, he is excellent proof that the government is fallible and needs the normal checks of the judicial system. And, of course, if he is innocent, he was the victim of a terrible injustice.

First, this administration will never, ever admit it was wrong. This is a president who still claims the war in Iraq is going well. This is a vice president who says that all who question the adminstration's manipulation of intelligence before the war are irresponsible and unpatriotic.

Second, while Padilla is no sweetheart and should see some serious jail-time, does anyone believe that the administration is fighting to keep him locked up because he’s a threat? No way! They’re not abandoning their dream to have unlimited powers of detention over U.S. citizens.

So why the game?

Two words: Samuel Alito.

Recently confirmed Supreme Court Justice Roberts is a known supporter of executive authority. Or, as Save the Court concludes from Roberts’ case history:

…it appears that Roberts views the Constitution as creating a supreme executive, and also that he would support the “federalist” revolution that seeks to interpret the Constitution in a manner that would undercut the authority of Congress to enact and enforce laws protecting the important rights and interests of all Americans.

A recent Boston Globe article notes that Alito, too, has backed executive authority in his judicial past.

These Supreme Court nominations aren’t about abortion. They aren’t about prayer in school or the posting the Ten Commandments in school, outlawing sodomy (i.e., fags), protecting the Pledge of Allegiance, or prohibiting flag burning. No. These nominations are about vesting authoritative powers in executive branch.

And that’s why the Bush administration is playing games with Padilla. They’ll charge him and un-charge him until Alito’s in place, and then they’ll bring the case to court where the dutiful, newly-established presidential *ss-kissers will grant Bush the power to jail anyone he (dis)likes.

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