Wednesday, June 08, 2005


Will the Supremes now take the Padilla case?

The case of Jose Padilla, now held on the word of George Bush without charges or trial for over 3 years, will be reviewed in the Supreme Court's conference tomorrow to determine if they will hear it.

Last year the Supremes booted the case back to the lower courts because of what they said was a jurisdictional problem. Padilla's lawyers refiled the case in South Carolina.

According to Bethany Broida of Legal Times, the refiled charges "named Cmdr. C.T. Hanft, the commander of the Navy brig where Padilla is being held, as the defendant." So the case is now known as Padilla v. Hanft.

In February 2005, the U.S. District Court in South Carolina agreed with an earlier ruling by the 2nd U.S. Circuit Court of Appeals in New York and found that the government had no grounds to hold Padilla indefinitely, ruling that he must either be charged with a crime or released.

The issue of the moment is whether the Supremes will allow Padilla to leapfrog over the Fourth Circuit Court of Appeals, which has already granted an expedited hearing. The government is trying to drag this out as long as possible and is urging that Supreme Court involvement would be "premature." But at a minimum, a hearing before the Fourth Circuit will add months to Padilla's confinement. And in any event, the case will not be heard before the court begins a new session in October.

Here at Simply Appalling, Supreme Court review does not seem "premature." "Urgent" is the word that comes to mind.

"Here we have an American citizen who has been detained without trial for three years," says Jenny Martinez, the counsel of record for Padilla and an assistant professor at Stanford Law School. "At some level there is something fundamentally unfair with the government saying, 'We can keep you locked up forever and we can keep changing [the charges].'"

The legal foundation for the government's case is this—

... the government argues that Padilla's continued detention is lawful under the resolution passed by Congress shortly after the Sept. 11, 2001, terrorist attacks that allows the president to use "all necessary and appropriate force" against those "he determines planned, authorized, committed, or aided the terrorist attacks."

Doesn't the word "appropriate" imply "within constitutional bounds"? And if it doesn't, does the Congress have the power to authorize unconstitutional actions by the President? The Supreme Court's decision will say a lot about how far we've come along the road to totalitarianism, though the fact that Padilla has been held without charges for over three years already says plenty.

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