More on Jose Padilla

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Al Norris

Moderator Emeritus
Regardless of what you may think of Jose Padilla, the case before the Supreme Court is done. Certiorari was denied this morning. Unlike that majority of denials, this one has elicited comments as to why it was denied. It has also elicited comments on why it should have been heard. Somewhat unusual for the Court, but enlightening nonetheless.

In denying Cert, Kennedy wrote:
In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises.
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So if the Government decides to redesignate Padilla as an Enemy Combatant, either before his current trial or during that trial, then Padilla can re-assert his Habeas Corpus suit and spend another 4 years in a brig and be released to trial shortly before the Supreme Court decides Cert, goes back to trail on the previous charges, where after the cert is again denied, he is redesignated.... ad infinitum.

Thank you Justices Kennedy, Stevens, Alito, Scalia, Thomas and Chief Roberts. I feel so much safer now! It would appear that the Liberal side, Ginsberg, Souter and Breyer understand the implications of this denial of Certiorari, while the others see nothing wrong in following procedure to its ultimate conclusions.

For once, I agree with Ginsbergs assertions:
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. Ibid. 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.
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This is troubling on several levels.

Some of you may wish to argue that Padilla is an enemy. I would agree... But... What kind of enemy? Is he a terrorist? Is he a mundane criminal? How should he be treated, as an American Citizen, arrested on American soil by a civilian law enforcement organization? Should he be turned over to the Military? For how long and under what proper designation? Remember, "Enemy Combatant" is a made up designation and holds no legal weight.

Further, since this will not now be contested and we will have no Judicial advice on this designation, how far fetched is it that in the near future, a radical gun rights activist might be arrested and detained (forever?) under the designation of, "Enemy of the People"? Meanwhile, Padilla will be rotting, alternatively in a military or civilian prison, depending upon whether he is currently a charged criminal or an Enemy Combatant.

The Court has dodged the ball on this one, to the possible detriment of us all. Depending upon who is the Executive at the time (Think 2008 and Hillary). Further, it has set a new precedent in denying this certiorari and we all should be aware of how distasteful the Court is in overturning stare decisis.
 
Yuppers.... you got my vote in agreement as well. What most folks dont seem to understand is the fact that once you have ceded rights to the government you are not going to get them back unless something drastic happens. Mr. Padilla is an Ameircan citizen, who should have had the right to question his detainment and status once he was detained. The decison could have then been made as to wheter he was an 'enemy combatant" or should be considered as a criminal and given a criminal trial. Such legal shennaigans lead me to consider that this administration will someday set up the precedence for a future administration to call American citizens enemies of the state and detain them indefinitiely.
 
Are we sure Padilla will see a courtroom? He can be charged as an enemy combatant again and placed under military authority once again. He will have to undergo the same process, once again. And once again, when it looks like his case will be adjudicated by the Supreme Court, he will again be released from the military to the civil authorities... And one more time, the case will be moot. This can be repeated until Padilla dies of old age.

Padilla has not been charged with Treason. He has not been charged with Espionage. Those would require a trial. He was charged with being an enemy combatant. A thoroughly and legally undefined status for an American arrested on American soil.

What has happened to Padilla, can happen to any one of us now, because of this denial of cert.
 
Hopefully if the administration decides to play two card monte with Padilla again the light bulbs in the Supreme Court will come on again and they will tell King George that if it comes to them a second time he isnt going to like the outcome.... :crosses fingers:
 
Due Process?

Or overdoing process? ;)

So if the Government decides to redesignate Padilla as an Enemy Combatant, either before his current trial or during that trial, then Padilla can re-assert his Habeas Corpus suit and spend another 4 years in a brig and be released to trial shortly before the Supreme Court decides Cert, goes back to trail on the previous charges, where after the cert is again denied, he is redesignated....
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The problem I have with Kennedy's explanation is that he says that if the feds try to reassert the designation, then the trial judge can just stop them... But Kennedy ignores the fact that Padilla had already been arraigned and was awaiting his prelim when he was snatched. The local judge yelled foul, but the feds weren't listening. So what makes Kennedy think it will be any different a second time around?
 
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