Here’s what’s happening: Jose Padilla is the U.S. citizen who supposedly plotted to detonate a “dirty bomb” and use natural gas to blow up apartment buildings in Washington D.C., New York and Florida. Since his capture − not on the battlefields of Afghanistan or Iraq, but at Chicago’s O’Hare Airport − he hasn’t been charged with any crime. Yet since June 2002, Padilla has been held incommunicado in a South Carolina military brig − indefinite detention, without access to a lawyer until the government acceded to outside pressure in March 2004.
Essentially, the Supreme Court ducked its opportunity to decide whether Padilla’s detention is permissible. Chief Justice Rehnquist, joined by his four conservative allies, held that the head of the military brig in South Carolina, Commander Marr, not Defense Secretary Donald Rumsfeld, was the person whom Padilla should have sued. Marr was Padilla’s immediate custodian, and she was not within the jurisdiction of the New York federal courts, where Padilla filed his case. That rule, said Rehnquist, is to prevent “forum shopping” by detainees seeking release under the habeas corpus statute. The result: Padilla had to start over; he has now re‐filed his petition in South Carolina.
So what happens next? Some news reports indicate that the Justice Department is planning to indict him. After all, the government claims that Padilla was detained because he was an enemy combatant who (1) was “closely associated with Al Qaeda”; (2) had engaged in “war‐like acts, including conduct in preparation for acts of international terrorism”; (3) had intelligence that could assist the United States to ward off future terrorist attacks; and (4) was a continuing threat to U.S. security. The government did not allege, however, that Padilla was actually a member of Al Qaeda.
Then, just prior to the Supreme Court’s decision, the Justice Department issued a report on Padilla’s interrogation. Supposedly, Padilla admitted that he attended Al Qaeda training camps and discussed both a bomb and the use of natural gas to blow up apartment buildings. Bear in mind that Padilla had no lawyer present, so the evidence would not be admissible in court. The government said he was not mistreated, but would not confirm that the interrogation complied with the Geneva Convention. Further, the department presented no indictment that Padilla could challenge. His appointed lawyer, who met Padilla for the first time in March, was under a gag order. He could not even say if Padilla disputed the allegations. In other words, no defense was possible. But according to a footnote in the report, Padilla denies sworn allegiance to, or being part of, Al Qaeda; denies the bomb plot; and says he discussed a plot only to avoid fighting in Afghanistan.
I doubt that the government has a compelling case, or the Justice Department would have filed charges long ago. Still, charges will probably be filed, if only because the logic of the Hamdi case suggests that the government’s alternative, like it or not, is to release Padilla. Hamdi, of course, is another U.S. citizen, also detained incommunicado without charges for two years. The major difference is that he was reportedly apprehended on the battlefield in Afghanistan, not at O’Hare airport where Padilla was captured.
On June 28, the same day as the Padilla decision, Justice O’Connor released her plurality opinion in Hamdi. Joined by Justices Rehnquist, Kennedy, and Breyer, she held that the government “may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who engaged in armed conflict against the United States.” Justice Thomas joined the plurality with respect to that holding. He actually filed a dissenting opinion, but his conclusion tipped even further toward executive power. He argued that “this detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second‐guess that decision.”
Therefore, a majority of the Court clearly authorized Hamdi’s detention. Why then do I predict Padilla’s release if he’s not charged? For four reasons. First, the implication of the Hamdi plurality opinion is that the ongoing war on terror would not justify detention once active hostilities in Afghanistan ended. Arguably, they have ended. Second, and more compelling, the Hamdi plurality said that his detention was permitted to prevent combatants from returning to the battlefield. But Padilla did not come from the battlefield. He was not one of the “Taliban combatants who engaged in armed conflict against the United States.”
Third, the Hamdi plurality allowed executive detention only in light of Congress’ post‐911 Authorization for Use of Military Force, which satisfied the following mandate from a 1971 statute, the Non‐Detention Act: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” According to the Hamdi plurality opinion, the post‐911 resolution triggered the president’s commander‐in‐chief power to apprehend enemy soldiers in a zone of active combat. Perhaps so. But the president surely cannot order the imprisonment, without charge, of an unarmed non‐soldier far from active combat, especially a U.S. citizen on our own soil. In fact, Justices Souter and Ginsburg filed a separate opinion in Hamdi and concluded that, despite the post‐911 resolution, even Hamdi’s detention violated the Non‐Detention Act. A fortiori, so did Padilla’s.
Fourth, considering the Padilla and Hamdi decisions together, if Padilla returns to the Supreme Court, he should have five solid votes for release. One vote would come from Justice Scalia. He dissented in Hamdi, joined by Justice Stevens, and concluded that Hamdi is entitled to release, unless he is charged with a crime or treason, or Congress suspends habeas corpus. The remaining four votes for Padilla’s release would come from the four Padilla dissenters — Justices Stevens, Breyer, Souter and Ginsburg — who wanted to reach the merits of that case. They argued that “executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.” Padilla’s detention, said the dissenters, was a “form of torture,” like the Star Chamber.
Interestingly, spokesmen for the administration are spinning the Hamdi case as a victory for executive power. Nothing could be further from the truth. Earlier, the U.S. Court of Appeals for the Fourth Circuit, in an opinion by conservative Judge J. Harvie Wilkinson, rejected the government’s primary argument: that the courts cannot “second‐guess” the military’s enemy combatant determinations. Even the Defense Department has now backed off that argument. In the Guantanamo case, the government conceded that habeas corpus jurisdiction would have existed if a Gitmo detainee were a U.S. citizen. Now, in Hamdi, the Supreme Court has rejected the government’s fallback argument: that all the government has to produce is “some evidence” to support its enemy combatant designation. According to the Hamdi plurality, the detainee gets a lawyer and a fair opportunity to rebut the government before a neutral decision maker. Contrast that with President Bush’s executive order on military tribunals, which asserted that a detainee “shall not be privileged to seek any remedy … directly or indirectly … in any court of the United States.”
Finally, administration supporters ask this question: Suppose President Bush had released Padilla, who proceeded to blow up parts of New York. No doubt a number of the administration’s critics would have sought Bush’s impeachment. Obviously, that same dilemma exists whenever anybody is released for lack of evidence, and then commits a crime. In the case of suspected terrorists, the stakes are immense. So a powerful argument can be made for changing the rules — tilting toward national security even though some civil liberties might be compromised. But if we do change the rules, the process cannot be unilateral − implemented by executive edict without either congressional or judicial input. And it cannot be law on‐the‐fly, with no knowledge of the rules by anyone other than the executive officials who are responsible for their enforcement.
Padilla may deserve the treatment he is receiving–maybe worse. That isn’t the point. When American citizens are taken into custody, they have, at a bare minimum, the right to retain an attorney. Then an impartial court, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution. In Padilla’s case, five justices now say his ongoing detention is unacceptable. That’s why Padilla must be charged or released.