Now that Padilla has been indicted, the appeal is probably moot -- which is too bad. While the Bush Administration is right to use whatever legal tools it wishes to fight terrorists, we can't help but wonder if, in choosing not to take Padilla's case to the Supreme Court, it is missing a chance at a larger victory for executive war-fighting authority... WSJ
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This WSJ editor is their mind and doesn't know what is going on---which is the opposite of what is implied above.
The DoJ was stuck between the rock of `enemy combatant' and the hard place of the `Patriot Act'.
If they kept Padilla, they would face an appeal to the SC. If the SC followed its earlier ruling (Hamdi v Rumsfeld) of allowing `enemy combatants' to challenge their imprisonment in court, the DoJ would have to provide evidence on the dirty bomb charge to a court for review. This alternative would leave them open to potential demands from a judge for more evidence which they could not refuse, without the risk of a release due to lack of evidence.
If DoJ charged Padilla as they have in a criminal case, they will still face legal challenges about their evidence gathered under the Patriot Act---sections that have not been reviewed by the federal courts (as far as I know).
DoJ picked the lesser of two evils.
In other words Gonzales thinks the Patriot Act provisions will stand up to judicial review better than the arbitrary extension of executive power did. And he should know the weak points of those extensions, since he probably drafted them.
There is nothing liberal about any of this. It is a battle over the separation of powers. The judicial branch has a vested interest in both alternatives, which in effect erode the power of the judicial branch to review the activities of the executive and the Congress.
The 4th Circuit panel in Hamdi v. Rumsfeld found that `` `the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not.' The panel therefore found that it should defer to the Executive Branch's `enemy combatant' determination.'' (Smells like a John Yoo idea.)
This argument was explicitly thrown out by the SC decision on Hamdi. O'Connor wrote for the plurality of Reinquist, Breyer and Kennedy:
``...we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government...''
Souter and Ginzberg concurred, with a dissent against the 4th Ct finding that Congress authorized (under the war authorization bill) executive power to detain US citizens as unlawful combatants and deny them habeas review.
In (to me) a surprise, Scalia's dissent in Hamdi joined by Stevens found: ``Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ...'' Scalia's dissent provided a long history lesson that was fascinating to read and seemed to echo the much celebrated but oft absent strict constructionist pov.
O'Connor argued against Scalia's dissent saying that following Scalia's argument would encourage the military to hold citizen detainees overseas indefinitely to avoid facing these alternatives. (Not too convincing. But O'Connor must know Scalia's intentions better than the rest of us.)
At least Hamdi was captured in Afghanistan allegedly with rifle in hand. Padilla was captured in the US getting off a plane under government affidavit of his alleged conspiracy to become a potential threat.
If Gonzales had decided to allow the appeal to the SC he would have to face Hamdi v Rumsfeld:
``Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error...''
Padilla maintains he was in fact a tourist and local aid worker. However suspect that might claim be, Padilla only has to better the government's claim he was actively training and returned to the US to carry out some plot (``As the Government itself has recognized, we have utilized the `some evidence' standard in the past as a standard of review, not as a standard of proof.'')
It's possible that further evidence of Padilla's intentions found during interrogations doesn't constitute such proof for a charge. (``An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker..'').
In other words a dirty bomb plot allegation by DoJ affidavit might be good enough to hold Padilla, provided he couldn't convince a judge otherwise---but that standard wasn't sufficient to charge and prosecute him.
Basically DoJ didn't have a choice. So the honorable Alberto Torquemada Gonzales followed the suggestion of his beneficence Urbino de Antony Scalia's history lesson on Milligan:
``If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he 'conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.''
His beneficence noted of Quirin the much cited example by DoJ luminaries Yoo, Gonzales et al. of the executive power imperative to imprison anyone at will:
``The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S. citizen. The case was not this Court's finest hour...''
``Not the court's finest hour'', does not bode well for our Grand Inquisitor. But, the steely eyed El Magnifico can be consoled that Haupt was executed anyway.
CG