Editore"s Note
Tilting at Windmills

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April 3, 2006
By: Kevin Drum

JOSE PADILLA UPDATE....This is really a disgrace: the Supreme Court has declined to hear Jose Padilla's case contesting the power of the federal government to detain U.S. citizens as enemy combatants.

Aside from the substantive issues at stake, the trial record made it crystal clear that the Bush administration has been playing games with Padilla solely for the purpose of creating legal technicalities that would prevent the Supreme Court from hearing his case. Even if the court doesn't care about Padilla, they sure ought to care about the executive branch playing transparently disingenuous games to flout the authority of the judicial branch.

The court should have taken the case. Not only is it an important issue that needs to be settled, but the Bush administration needs to be sent a message that the Supreme Court doesn't appreciate being screwed around with. They blew it on both counts.

Kevin Drum 3:12 PM Permalink | Trackbacks | Comments (61)

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Comments

scary huh! for a whole lot of reasons.

Posted by: mestizo on April 3, 2006 at 3:13 PM | PERMALINK

Most of the time initial posts on this site generate a lot of heat and some light. This one shouldn't.

Posted by: Ron Byers on April 3, 2006 at 3:21 PM | PERMALINK

not really, at least 2 justices on the Court indicated that they would immediately seek to hear the case if the administration removed Padilla again from the jurisdiction of the criminal courts.

since he now is in the court system he doesn't really have standing to challenge a hypothetical.

it's not a disgrace at all, this is the way our legal system functions.

Posted by: Nathan on April 3, 2006 at 3:23 PM | PERMALINK

The slide into the abyss quickens...

Posted by: craigie on April 3, 2006 at 3:23 PM | PERMALINK

We have a system of checks and balances, and it's the SCOTUS' sacred duty to check the power of the executive branch, but it looks like SCOTUS has been cowered into not performing that duty. This is a sad day for our democracy.

Posted by: Andy on April 3, 2006 at 3:23 PM | PERMALINK

um, I thought I typed "6 justices"

Posted by: Nathan on April 3, 2006 at 3:25 PM | PERMALINK

I believe the Supremes are limited to hearing actual cases. The gov't shortcircuited this one. Disgraceful, but it seems to have been beyond the actual jurisdiction of the SCOTUS.

Posted by: Jeffrey Davis on April 3, 2006 at 3:25 PM | PERMALINK

I remember Jerry Falwell speaking admiringly of GWB in some talk show a few years ago and adding that Jeb Bush would make a great President.

The Democratic party has been catrated. Congress has been neutered. As soon as the judiciary follows suit, we can declare the beginning of the Bush dynasty and annoint George the king and Jeb his duly appointed heir.

The program is falling in place.

Posted by: lib on April 3, 2006 at 3:27 PM | PERMALINK

Could one say the answer to whether the administration is manipulating the legal system is a question of what your definition of "is" is?

No one's ever done that before....

Posted by: Yankee Sailor on April 3, 2006 at 3:32 PM | PERMALINK

Holy habeas corpus! I've been trying to convince my conservative friends for years now that the bell tolls for US, U.S. citizens. No, no, says they, only the terrorists (while refusing to admit that anyone W says is a terrorist gets the treatment). And of course, until some middle aged white guy gets black bagged in the middle of the night (go see V for Vendetta!), nothing will change. We are SO hosed.

Posted by: nightshift66 on April 3, 2006 at 3:32 PM | PERMALINK

lib you must have been to one of our conservative "lets take over the world secret meetings". It went like this.
First we get a democrat from Ark elected president. He will disgrace the office. We will then get control of U.S. House which we had not had for 60 years, then as additional scandals came along we would get control of the Senate and then the presidency again. To complete the total plan we would have George W. replace 3 supreme court justices and then the plan would be complete. Only Stevens is left to complete this great 20 year plan". Please don't tell anyone about this because they would then want to know the "secret handshake"....

Posted by: daveyo on April 3, 2006 at 3:32 PM | PERMALINK

nightshift66: nice post!

Posted by: shortstop on April 3, 2006 at 3:34 PM | PERMALINK

The Supreme Court cares about the Bush Administration skirting the Constitution, and they are in favor of it. Remember who elected Bush in the first place?

Posted by: reino on April 3, 2006 at 3:35 PM | PERMALINK

nightshift66 and shortstop:

um, Padilla has the right of habeas corpus. that's why the SC couldn't hear the case. because Padilla is in the criminal justice system.

Posted by: Nathan on April 3, 2006 at 3:36 PM | PERMALINK

Gee, daveyo, you left off all the good parts of the plan--- take a highly questionable 2000 election on a straight partisan vote in SCOTUS, repeatedly change or ignore the rules of both the House and Senate to strongarm the result you want, have a naked partisan control the voting machinery AND allow said partisan to declare said voting machinery to be a trade secret and beyond independent inspection, have an unprecedented second redistricting in Texas to bolster a thin majority in the House, defame any and all critics as traitors, and establish your preznit's ability to make anyone, citizen or not, disappear into limbo without recourse. Oh, yes, I nearly forgot, purge K Street of anyone who isn't loyal to the Party and for heaven's sake, NEVER let W speak to a group that hasn't been prescreened and forced to sign loyalty oaths.

You just aren't giving yourselves enough credit.

Posted by: nightshift66 on April 3, 2006 at 3:42 PM | PERMALINK

If it is the sacred duty of SCOTUS to check the power of the Executive Branch, it is only because of the single greatest usurption of power by SCOTUS itself in Marbury v. Madison.

Posted by: twwren on April 3, 2006 at 3:43 PM | PERMALINK

lib on April 3, 2006 at 3:27 PM

Just the other day we were introduced to young master Pierce Bush. Dynastic Presidents, don't you just love the Republican party and its belief in meritocracy.

Posted by: Ron Byers on April 3, 2006 at 3:45 PM | PERMALINK

Ah, Nathan. You should probably revisit the "Fox, Meet Henhouse" thread.

Just the other day we were introduced to young master Pierce Bush...

Do y'all feel like they only have about eight names in that family, and they just keep reconfiguring them in different unattractive combinations?

Posted by: shortstop on April 3, 2006 at 3:49 PM | PERMALINK

The court should have taken the case. Not only is it an important issue that needs to be settled, but the Bush administration needs to be sent a message that the Supreme Court doesn't appreciate being screwed around with.Kevin Drum

And which Supreme Court would this be? Surely you're not talking about the U.S. Supreme Court, which, thanks to 'Ol Plain Talkin' Harry Reid, now has a 5 to 4 neo-Nazi majority of Roberts, Alito, Scalia, Thomas and Kennedy completely beholden to the Bush administration? Or did you have a less reactionary, 21st Century court in mind?

Posted by: Jeff II on April 3, 2006 at 3:49 PM | PERMALINK

Nightshift: Don't forget the fourth estate; strike down the fairness doctrine and begin broadcasting only conservative-slanted "news" in all forms of media, to the extent of creating a Republican-party run "news" channel alongside the corporate-run "mainstream" channels - whose content is itself dictated by their conservative owners.

Posted by: S Ra on April 3, 2006 at 3:49 PM | PERMALINK

If it is the sacred duty of SCOTUS to check the power of the Executive Branch, it is only because of the single greatest usurption of power by SCOTUS itself in Marbury v. Madison.

There you have it, kids. The Constitution's been in exile not since FDR, but since Jefferson.

The "real" America sure didn't last very long, did it, twwren?

Posted by: Alek Hidell on April 3, 2006 at 3:50 PM | PERMALINK

nightshift66 were you at the same meeting as lib. Wow we are going to have to do something, pretty soon everyone will be at our secret meetings. nightshift66 I did not want to give all the details to the plan, but thanks for filling in some of the gaps. Of course not every plan is perfect, but you can't argue with the results to date. Of course "The Plan Part II" is in 2008 Jeb is elected prez and after 20 years of Bush Presidency the immigration problem will be solved, as all libs will have moved north... Please don't tell anyone....

Posted by: daveyo on April 3, 2006 at 3:51 PM | PERMALINK

Nope.

Posted by: twwren on April 3, 2006 at 3:56 PM | PERMALINK

as all libs will have moved north...

That's my plan B, though I'd go east or west, not north. But Plan A is to simply take California out of the union. I mean really, how much more of this crap are we expected to subsidize?

Posted by: craigie on April 3, 2006 at 3:57 PM | PERMALINK

Nathan is right, if anyone's paying attention. Kennedy's op made it very clear that the Court will not put up with any more gamesmanship about Padilla's custody.

Marty Lederman, who has a great deal of cred on such issues, made just that point.

Myself, I would've liked the Court to take the case, but I can see them not wanting to get into separation-of-powers fights that they don't have to ... especially with Hamdi on their plate.

Posted by: Anderson on April 3, 2006 at 4:00 PM | PERMALINK

I'll also point out that Scalia indicated in Hamdi that Padilla's former incarceration outside of the criminal justice system was unlawful.

so, if Padilla was removed from the cj system it appears that there would be somewhere between 5-9 votes on the SC that such would be unconstitutional.

of course, everyone on today's thread is too busy rhetorically masturbating to respond to anything substantive.

Posted by: Nathan on April 3, 2006 at 4:04 PM | PERMALINK

You didn't notice?
Roberts, along with Stevens, signed onto an opinion by Kennedy that says:
when we do get to this case, we will expect that any trials you (the executive) conduct will provide due process. Or, in other words, for now we are putting off condemning you for the denial of fundamental rights. But we are warning you that if you do insist on doing so, you will lose here, six to three.

Posted by: Sanguine and Pleased on April 3, 2006 at 4:06 PM | PERMALINK

Kevin,

The Court does not care, and has never cared, about justice in individual cases. Its sole role is to resolve important, recurring issues of law. The Court may well have decided either that the Padilla case was isolated, in which case it's not worth the Court's time. Or perhaps it decided that even if important issues were presented, it would be better to wait for several of the lower courts to address them before the Court weighs in with a definitive ruling. Or maybe the Court thought the lower court decided Padilla's case directly. Or mabye they thought it was all moot. The only thing you can say for sure is that none of the Justices, not one of them, cares about whether or not Mr. Padilla's particular case is decided correctly.

Posted by: DBL on April 3, 2006 at 4:14 PM | PERMALINK

Does Padilla have standing to SUE the prez for his time spent in limbo?

Posted by: Jeffrey Davis on April 3, 2006 at 4:18 PM | PERMALINK

Sanguine and Pleased:

actually see Scalia's comments in Hamdi...the vote would be at least 7-2 (and don't assume that Thomas or Alito would back the administration either)

Posted by: Nathan on April 3, 2006 at 4:20 PM | PERMALINK

You're discounting the possibility that they enjoy being screwed around with. Remember, the prime qualification for the Supreme Court in WPE's mind is the absolute conviction that courts exist for the sole purpose of approving the actions of the executive.

Posted by: dp on April 3, 2006 at 4:31 PM | PERMALINK

Jeffrey Davis:

hmm...you mean for some tort such as false imprisonment? well, the government does have sovereign immunity...which is waived for certain statutory remedies such as a Bivens action....

things would probably have to play out in the criminal system first...any criminal attorneys here? after Padilla is convicted, would his time in the brig count as "time already served" for purposes of his criminal sentence? If so, then he probably couldn't sue for false imprisonment...

Posted by: Nathan on April 3, 2006 at 4:31 PM | PERMALINK

You didn't notice? Roberts, along with Stevens, signed onto an opinion by Kennedy that says:
when we do get to this case, we will expect that any trials you (the executive) conduct will provide due process. Or, in other words, for now we are putting off condemning you for the denial of fundamental rights. But we are warning you that if you do insist on doing so, you will lose here, six to three. Posted by: Sanguine and Pleased

More like Sanguine and Deceived.

Reading it your way it's like the SC is your mother saying, "Just you wait, mister. Try that one more time, and you'll answer to your father."

Right.

Posted by: Jeff II on April 3, 2006 at 4:33 PM | PERMALINK

Rhetorically masturbating? Why sir, I will have you know I was actually masturbating! Nothing like prison pics of shit smeared men being sodomized with beer bottles and attacked by dogs to get me going! Our administration has almost single handedly brought homoerotic bondage/torture and sadism/snuff to the attention of Ma and Pa churchgoer and rubbed their prissy little noses in it. Ye Haw!

Smell our stink!

Posted by: Alberto Gonzalez on April 3, 2006 at 4:34 PM | PERMALINK

Bush administration needs to be sent a message that the Supreme Court doesn't appreciate being screwed around with. They blew it on both counts.

I submit that the Bush administration got the exact message that the Supreme Court intended. There will be no accountability on this issue.

Posted by: Larry on April 3, 2006 at 4:37 PM | PERMALINK

hmm...you mean for some tort such as false imprisonment?

No. For sitting in friggin' limbo.

Posted by: Jeffrey Davis on April 3, 2006 at 4:51 PM | PERMALINK

Jeffrey - The answer to your question is No.

Posted by: DBL on April 3, 2006 at 4:53 PM | PERMALINK

Why this case is neither "moot" nor merely hypothetical

http://writ.news.findlaw.com/dorf/20060104.html

But the government's mootness argument neglects the fact that, as Padilla's lawyers have noted, Padilla does not wish to be transferred to civilian custody until after the Supreme Court rules on his certiorari petition.

Moreover, the Court long ago fashioned an exception to the mootness principle for issues that are "capable of repetition yet evading review."

Suppose, for example, that somebody wishes to bring a challenge to a form of custody that, by definition, only lasts for a few weeks. Because of the temporary nature of the custody, he will be released before the case completes its journey through the courts.

If his release were held to moot his case, then no court would ever hear his challenge--because each time it was raised, it would also be mooted. To avoid such a scenario, then, the challenge will be permitted even after the detainee has gone free.

The government argues that Padilla's case does not fit within the exception because it is highly unlikely that he himself will be reclassified as an enemy combatant now that the Administration has decided to indict him as a criminal. Yet this narrow framing of the capable-of-repetition-yet-evading-review concept seems to miss its point in a case like Padilla's.

As Judge Luttig's December opinion suggests, the Administration's conduct indicates that it may be attempting to evade review of the issue a case like Padilla's raises: whether any U.S. citizen--not just Padilla himself--who has been captured within the United States but is alleged to be "associated" with a foreign terrorist organization, can be relegated to military detention?

By holding other people like Padilla for years, only to transfer them to civilian custody on the brink of Supreme Court review, the Administration could indeed evade review indefinitely.

Posted by: Catch22 on April 3, 2006 at 5:00 PM | PERMALINK

"But the government's mootness argument neglects the fact that, as Padilla's lawyers have noted, Padilla does not wish to be transferred to civilian custody until after the Supreme Court rules on his certiorari petition."

(you mean Padilla's lawyers do not wish)...that's nice and absolutely irrelevant.

the concern you noted in the latter half of your post is legitimate, but the SC addressed that. they noted that they would grant expedited review if this situation arose again

Posted by: Nathan on April 3, 2006 at 5:04 PM | PERMALINK

(and don't assume that Thomas or Alito would back the administration either)

I'll believe that when I see it.

Posted by: craigie on April 3, 2006 at 5:05 PM | PERMALINK

Yes, if either Scalia or Thomas had ever bucked the admin before WHEN IT MATTERED, I might be more confident in their whole 'we're watching you' schtick. Just like A. Specter, they have undeserved reputations for independent thought. And Alito's lower court opinions are pure admin cheerleading. Nothing at all there to suggest those three are going to do anything but salute when told.

Posted by: nightshift66 on April 3, 2006 at 5:15 PM | PERMALINK


That's my plan B....

No, craigie. Plan B offshores the Presidency to Singapore.

Posted by: kaptain kapital on April 3, 2006 at 5:25 PM | PERMALINK

the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .

The bill of rights isn't something the government can fuck with and then say "nevermind" when a supreme court appeal looks inevitable. If this was a second amendment case we'd already have our own low-level civil war.

Posted by: B on April 3, 2006 at 5:30 PM | PERMALINK

Bush seems to be a master of misdirection. All along for the past five years liberals have been worrying that he has been trying to pack the court to overturn Roe v. Wade and it was Marbury v. Madison that he was after all along. Pure genius.

Posted by: Majun on April 3, 2006 at 5:42 PM | PERMALINK

...the Bush administration needs to be sent a message that the Supreme Court doesn't appreciate being screwed around with.

Roberts and Alito were put on the court specifically to:
1. Strike down abortion
and
2. Destroy the system of checks and balances by giving the Executive branch unlimited power (or to let the President screw around with them).

Seems pretty simple to me.

Why is this decision surprising?

Posted by: Monkey on April 3, 2006 at 5:46 PM | PERMALINK

Vaffanculo!

Posted by: Onomasticator on April 3, 2006 at 5:51 PM | PERMALINK

So what is SCOTUS saying, really? "Ok, you have screwed around with this guy X number of times. But if you screw around with him X+1 (X+2? X+3?)times we will really get pissed!"

Shouldn't the whole idea of SCOTUS be that if the powerful State screws around with an citizen ONCE, it is one time too many? How many free passes does the State get, and who decides?

Posted by: Confused... on April 3, 2006 at 6:03 PM | PERMALINK

Textbook case of a case that's "capable of repetition yet evading review" (Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911)). We'll see where this goes.

Posted by: WatchfulBabbler on April 3, 2006 at 6:04 PM | PERMALINK

"Case of a case?" Not enough coffee this afternoon, I think.

Posted by: WatchfulBabbler on April 3, 2006 at 6:05 PM | PERMALINK

Hey! let's keep the homoerotic Scalia bashing multicultural . . .

schoggi-schtooss!

Posted by: toast on April 3, 2006 at 6:05 PM | PERMALINK

People: THIS CASE WAS NOT DECLINED ON MOOTNESS GROUNDS.

*Nowhere* did the Court say it was doing any such thing.

Ginsburg wrote her dissent that way, but Kennedy's op clearly *declines to address the mootness issue*.

Damn. No wonder Drum's comment threads get a bad rap. Maybe half a dozen people have had ANYTHING to say that couldn't have been written the day before.

Posted by: Anderson on April 3, 2006 at 6:11 PM | PERMALINK

Nevermind, swiss-german will never sound cool.

Posted by: toast on April 3, 2006 at 6:12 PM | PERMALINK

Supposedly the opinion gives Padilla a bit of help in plea bargaining, etc. as he now is pretty sure that the supreme court would not support the government returning him to military custody upon being aquitted.

Won't the three year delay trigger the presumption that Padilla's sixth amendment rights have been violated? Am I missing something? Creative neocon lawyers aren't all that if you want to have an open and shut case.

Posted by: B on April 3, 2006 at 6:26 PM | PERMALINK

I wonder what kind of shredder is working best on the old parchment documents. Something from Sharper Image, maybe?

Posted by: ferd on April 3, 2006 at 9:45 PM | PERMALINK

If it is the sacred duty of SCOTUS to check the power of the Executive Branch, it is only because of the single greatest usurption of power by SCOTUS itself in Marbury v. Madison.

The only thing that really attracts me to the idea of federalism is that one could conceivably banish all the insane libertarian freaks to one state where they would be free to create their mad vision of nasty, brutish, and short libertarian life. The only problem would be selecting a state for it. Nebraska?

Posted by: brooksfoe on April 3, 2006 at 10:10 PM | PERMALINK

"...but the Bush administration needs to be sent a message that the Supreme Court doesn't appreciate being screwed around with."

oh but they do.

Posted by: obviously on April 3, 2006 at 11:12 PM | PERMALINK

The only problem would be selecting a state for it. Nebraska? Posted by: brooksfoe

Oklahoma? Arkansas? Mississippi? Alabama? Iowa? Delaware? Florida except for Miami? We could set it up as a city-state.

Posted by: JeffII on April 3, 2006 at 11:39 PM | PERMALINK

This whole case was an embarrassment to this country, starting with Ashcroft's overblown hype about the "dirty bomb." As for Bivens type lawsuit, it would not likely be permitted against the President or Attorney General or Secretary of Defense, who would be the three real culprits here. The proper remedy is one where civil immunity (as in sovereign immunity) is not an issue- a criminal prosecution for the violation of Padilla's civil rights of the three named individuals. Of course, that would require an Attorney General who honored his oath to uphold the Constitution and a President who would faithfully execute the laws. What happens when they are the lawbreakers?

Posted by: James Finkelstein on April 4, 2006 at 1:59 AM | PERMALINK

Drum & others would do well to read the Knight-Ridder writeup.

Monday's ruling is a simple acknowledgement by the justices that they need not address every question in the war on terrorism, just the ones that are immediately at issue.

Posted by: Anderson on April 4, 2006 at 10:13 AM | PERMALINK

After claiming for years that the SCOTUS is the final arbiter or justice those on the Left shouldn't be so quick to condemn the all-powerful Court.

Hoisted on your own petard?

Posted by: Birkel on April 4, 2006 at 5:15 PM | PERMALINK




 

 

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