JURIST Guest Columnist Stephen Vladeck of the University of Miami School of Law says that for all the attention being paid to the trial of Jose Padilla, the proceeding will not address the critical legal question of whether the US government can subject one of its own citizens to indefinite military detention…

The central problem with the federal criminal prosecution of one-time alleged “dirty bomber” Jose Padilla, now underway in Miami, is that the trial itself will not provide any resolution to the real question that the Padilla case has always raised: Whether the U.S. government can subject U.S. citizens arrested on U.S. soil to incommunicado military detention (and, allegedly, to mental and physical abuse while in military custody).

The reason why the Padilla trial will provide no resolution of this fundamental question is simple enough: Federal district judge Marcia Cooke, who is presiding over the trial of Padilla and his two co-defendants, has made clear over a series of pre-trial rulings that Padilla’s military detention is completely irrelevant for purposes of his criminal trial, so long as the government does not introduce any evidence obtained in conjunction with that detention. All too willing to comply, the government itself has embraced this bifurcated understanding of Padilla’s confinement, going so far as to argue that the Justice Department cannot be held responsible for any unlawful actions of the Department of Defense — that the right hand simply can’t be called to account for the actions of the left.

Legally, Judge Cooke may well be correct. The government is not attempting to introduce evidence obtained from Padilla during his 1307-day stay in a South Carolina Navy brig, and so the question whether that detention (or any of the government’s actions toward Padilla during it) was unlawful would not seem to implicate any aspect of the criminal charges Padilla now faces. In effect, then, the criminal case against Padilla has proceeded upon the theory that his “incarceration” began the day he was transferred to the custody of the Department of Justice in January 2006.

But what about the previous three and a half years?

The question of the legality of Padilla’s military detention as an “enemy combatant” divided the four courts to consider it. In the first round of litigation, the Southern District of New York held in December 2002 that Padilla’s detention was authorized, a decision reversed by the Second Circuit one year later. After the Supreme Court vacated the Second Circuit’s decision on jurisdictional grounds and ordered Padilla to re-file his habeas petition in South Carolina, the South Carolina district court held that Padilla’s detention was unlawful, only to be reversed by the Fourth Circuit in September 2005. And it was just before the merits of Padilla’s case returned to the Supreme Court that the government indicted Padilla and sought to transfer him to civilian criminal custody, leading to the Supreme Court’s divided decision to deny certiorari last April. As Justice Kennedy wrote for himself, Chief Justice Roberts, and Justice Stevens,

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. Padilla is now being held pursuant to the control and supervision of the United States District Court for the Southern District of Florida, pending trial of the criminal case. In the course of its supervision over Padilla’s custody and trial the District Court will be obliged to afford him the protection, including the right to a speedy trial, guaranteed to all federal criminal defendants.

In short, the Court would only consider the merits of Padilla’s detention if the government sought to transfer Padilla back to military custody. Otherwise, the question was purely “hypothetical,” at least according to Justice Kennedy.

Thus far, at least, the government has given no indication of any intent to do so. Nor, I think, will it, irrespective of the verdict, for in the very next passage of his opinion concurring in the denial of certiorari, Justice Kennedy strongly hinted that any such action would be met with prompt judicial recourse, “to ensure that the office and purposes of the writ of habeas corpus are not compromised.” Thus, in denying review, the Supreme Court seemed to make rather clear that the criminal trial is now the government’s one shot at Jose Padilla, denying to Padilla, at the same time, a definitive answer to the legality of his military detention.

If the courts were unwilling to resolve the legality of Padilla’s detention once he was transferred to civilian criminal custody, and if the government never transfers Padilla back to military detention, the only remaining means for Padilla to obtain resolution of that question would be a damages lawsuit. But the Supreme Court has long recognized that damages suits are unavailable against federal officers when the law allegedly violated by the officer was not “clearly established.” Given the split of authority on whether Padilla’s detention was unlawful in the first place, it seems to follow that Padilla would have an extremely uphill battle in any future damages suit, whether he is acquitted of the present charges against him or not.

That reality thereby renders much of what is to come in Padilla’s trial anticlimactic. The outcome of the trial will not in any meaningful way shape subsequent resolution of the unresolved questions relating to Padilla’s military detention. It also suggests why Padilla’s case may be such a dangerous precedent whether Padilla is convicted or not. If the government can hold U.S. citizens in military detention up until the moment a court is set to rule against them—as most agree the Supreme Court was in the fall of 2005—and then avoid that review by indicting the detainee, what is to stop it from employing similar tactics in future cases?

Former Judge Luttig, who wrote the Fourth Circuit’s opinion upholding Padilla’s military detention in September 2005, wrote separately in December 2005 to express his concern at the message sent by the government’s change in tactics:

although the various facts [the government] has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake—an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror—an impression we would have thought the government likewise could ill afford to leave extant.

Today, over five years after Padilla was initially arrested at Chicago’s O’Hare Airport, these impressions remain. And they will still be present when Padilla’s criminal trial is scheduled to conclude in August, whether he is convicted or not.

Stephen Vladeck is a professor at the University of Miami School of Law; as of Fall 2007 he will
be joining the faculty at American University Washington College of Law. He has been involved in the Padilla litigation at various stages, and helped to draft several amicus briefs before the US Second Circuit and the US Supreme Court in Padilla I.

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