If there has been one common theme in the Bush administration’s handling of the myriad legal challenges to its conduct of the “war on terrorism,” it has been the government’s tendency to change the playing field just when defeat seemed imminent.
No case has better encapsulated this trend than that of one-time alleged “dirty bomber” Jose Padilla, who was convicted by a Miami federal jury Thursday on all three of the lesser terrorism charges against him.
Those verdicts are being called a vindication for the White House, but the real triumph came when the government succeeded in avoiding a decision on bigger, more crucial issues. That is the important Padilla precedent.
Padilla’s saga began more than 63 months ago, when he was arrested at Chicago’s O’Hare International Airport. Dubbed an “enemy combatant” by then-Attorney General John Ashcroft, Padilla, a US citizen, was transferred to a military brig and held without criminal charges in solitary confinement.
He was allegedly mistreated — and possibly even tortured — by his captors.
Court-appointed lawyers filed suit on Padilla’s behalf, arguing that the government either had to charge him with a crime or release him.
When the case went to the Supreme Court in June 2004, a 5-4 majority threw it out on a technicality, holding that Padilla had to sue in South Carolina (where he was then being held), rather than in New York (where he was initially confined). But the opinions filed that day and in the separate case of another detained US citizen, Yaser Esam Hamdi, also made clear that at least five of the justices believed that Padilla’s detention was unlawful; he just had to go through the right court first.
Padilla’s lawyers did exactly that, and his case returned to the Supreme Court in the fall of 2005. Just days before the Justice Department was supposed to file its brief on the merits, however, it announced that it had indicted Padilla on lesser terrorism charges completely unrelated to the “dirty bomb” allegations and moved to dismiss the Supreme Court case because it had become moot.
The justices acquiesced, and Padilla was transferred to civilian authorities pending his trial.
The specter of his military detention — and the government’s assertion that it could have held him forever without charge — at first lurked over the criminal proceedings. US District Judge Marcia G. Cooke was adamant from the start, however, that the criminal trial wouldn’t address it. Padilla sought to dismiss the criminal charges on the grounds that his right to a speedy trial had been violated and that the government’s outrageous conduct warranted dismissal; Cooke denied both motions and barred both sides from mentioning Padilla’s military detention at trial.
In retrospect, that was the critical moment in Padilla’s case, no matter the verdict. It meant that the legality of Padilla’s detention and treatment would be sidestepped completely, and the fundamental question of whether the government has the legal authority to detain US citizens arrested within the United States without charges would be left unanswered, perhaps for all time.
The government’s change-of-course tactic is hardly an isolated incident.
That the government has changed course midstream in such cases is not necessarily to suggest that its actions are in bad faith or that the defendants are not the “bad guys” that they have been made out to be. Rather, the more serious problem is with the process — that the changes in tactics prevent the courts from directly resolving the legality of the policies initially challenged and from fulfilling their constitutional duty to “say what the law is.”
In 1944, in the infamous Korematsu Supreme Court decision, which implicitly upheld Japanese-American internment, the judicial system also failed to make a direct ruling in an important civil liberties case.
In that instance, it was because the question under consideration didn’t directly challenge the legality of the internment camps. The author of the dissent in that case, Justice Robert H. Jackson, saw the dangers of delivering a “non-decision decision” when it came to our fundamental rights: “The principle,” he wrote in his dissent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
As in Korematsu, Padilla’s importance is in what it sanctions but did not decide: The government’s confinement of US citizens without charges.
Padilla’s military detention and his treatment while detained in fact might have been unlawful. The Bush administration’s real victory, then, was in preventing the courts from saying so.
— Stephen I. Vladeck is an associate professor at the American University Washington College of Law.
