JURIST Special Guest Columnist Jonathan Freiman, one of the attorneys representing Jose Padilla on his habeas petition, says that the concurrence in the US Supreme Court's rejection of Padilla's certiorari petition stands as a warning to the government that when it comes to imprisoning US citizens without charge or trial, its time may be running out…

When the Supreme Court declined to hear the Padilla case Monday, the decision was widely reported as a win for the Bush Administration. The reporting was only half right. To be sure, the government sidestepped immediate Supreme Court scrutiny of one of the most extreme legal tactics in the war on terror: the indefinite imprisonment, without charge or trial, of American citizens suspected of associating with enemies of the state. But in a carefully worded paragraph near the end of a brief concurrence, Justice Kennedy, joined by the Chief Justice and Justice Stevens, warned the government that its grace period is over.

Jose Padilla is an American citizen who was arrested as a material witness in Chicago and flown to New York, supposedly to testify before a grand jury. On the eve of a hearing to determine if Padilla could continue to be detained, the government transported him to a military prison in South Carolina, where for more than three years he was held as an “enemy combatant.” Two days after being seized by the military, Padilla’s court-appointed attorney filed a writ of habeas corpus asking that he be freed. The Second Circuit found that Padilla had to be charged with a crime or released, rejecting the government’s claim that the President could jail Americans without charge or trial. The Supreme Court reversed on other grounds, finding that the habeas petition should have been filed in South Carolina. Justice Scalia’s dissent in the Hamdi case issued the same day, coupled with the four dissenting votes in Padilla, led most court-watchers to conclude that at least five justices viewed the military detention without charge of citizens as illegal.

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Padilla re-filed his case in South Carolina and the district court granted him summary judgment, agreeing with the Second Circuit that the President lacked the power to seize citizens on American soil and imprison them without charge indefinitely. The Fourth Circuit, led by conservative icon Judge Luttig, reversed and Padilla petitioned the Supreme Court for certiorari. Then things got strange. Having already changed its story about Padilla several times, and with the real possibility of Supreme Court review and reversal, the government shifted course again, asking that he be transferred from military custody to a civilian prison to stand trial for new charges unrelated to the earlier accusations against him. The Fourth Circuit balked, with Judge Luttig penning some of the most memorable words in this long case. “[A]s the government surely must understand,” he wrote, the government’s actions left two deeply unsettling impressions: “that Padilla may have been held for these years, even if justifiably, by mistake,” and that the government thought that its assertion of power to detain Americans without charge or trial “can, in the end, yield to expediency with little or no cost to its conduct of the war against terror.” “And these impressions have been left,” Judge Luttig continued, “at what may ultimately prove to be substantial cost to the government’s credibility before the courts.” Undeterred, the government argued that Padilla’s transfer would moot the case or make it less worthy of review, then sought and received permission from the Supreme Court to transfer Padilla.

The Court listed the certiorari petition for consideration at an extraordinary eight conferences. Some commentators speculated that the wait augured a long dissent from a denial of certiorari, but yesterday’s denial (one vote shy of the four required to grant) came accompanied only by thin escorts: a 2-page dissent by Justice Ginsburg, and Justice Kennedy’s 4-page concurrence for himself, the Chief Justice and Justice Stevens.

The concurring opinion begins ordinarily enough, taking no position on the mootness arguments but concluding that “there are strong prudential considerations” for denying certiorari, both because Padilla is not now in military prison and because his “claims raise fundamental issues respecting the separation of powers, including the role and function of the courts.” In other words, today, when no American languishes without charge in a military prison, is the wrong day to decide such a monumental issue. But echoing Judge Luttig’s concerns about the government’s waning credibility, Justice Kennedy noted that 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.” The concurrence did not think that “continuing concern” worth resolving now because it “can be addressed if the necessity arises” — i.e., if he is again thrown into a military prison.

The opinion could have ended there. Instead, it goes out of its way to make clear that if the government again tries to imprison an American citizen without charge or trial, the issue will be resolved quickly. In the space of three sentences, Justice Kennedy three times emphasizes the need for swift resolution: Padilla is entitled to all normal constitutional protections, “including the right to a speedy trial”; if the government “seek[s] to change the status or conditions of Padilla’s custody,” the district court should “rule quickly” on the legality of such changes; and not only the district court but all “courts of competent jurisdiction” “should act promptly” on the legality of any such governmental moves. Indeed, the concurrence emphasizes that Padilla “retains the option of seeking a writ of habeas corpus in this Court,” a reminder of the little-used and oft-disfavored direct path to the Court. Such speedy review is essential, Justice Kennedy explained, “to ensure that the office and purposes of the writ of habeas corpus are not compromised.”

To my mind, the office and purposes of the writ were already compromised in Padilla’s case, where the government locked up a citizen in a military prison for years without charging him or giving him a chance to defend himself. There is nothing prompt about t
hat. But if the concurring justices do not think the writ has yet been compromised, they signaled yesterday that the hour is nigh, and the opinion takes steps to warn that the government’s grace period is over. It may have taken four years the first time, Justice Kennedy suggests, but it won’t the next time.

For Padilla, who faces the unthinkable prospect of being re-interned in a military prison even if found innocent in Florida, that’s a silver lining. For the rest of us, it’s at least a comforting indication that the Court recognizes that “at stake in this case is nothing less than the essence of a free society,” as Justice Stevens warned two years ago. He was not alone. As the late Chief Justice Rehnquist wrote then for the Court, the central but as-yet unanswered question raised by Padilla’s case is “indisputably of profound importance.” Monday's order and opinions reveal a Court ready to answer those essential questions if the government ever again starts to lock up citizens without charge or trial.

Jonathan M. Freiman, a Senior Schell Fellow at Yale Law School and Counsel at Wiggin and Dana, LLP, is one of the attorneys representing Jose Padilla on his habeas petition.
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