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Friday, April 07, 2006

The Consequences of Denying Cert. in Padilla

Yale Law Professor Bruce Ackerman offers this essay online at Slate, regarding the Supreme Court's decision not to hear the case of Jose Padilla. The background and the Supreme Court's refusal to review Padilla's case:
Almost four years ago, Jose Padilla was seized by the Bush administration as an "enemy combatant" upon his arrival at O'Hare Airport. He had arrived in civilian clothes and without any dangerous weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. Attorney General John Ashcroft took to the television to charge him with plotting to attack an American city with a "dirty bomb." The government has long since abandoned this charge, but continued to hold Padilla in military custody—transferring him to the civilian courts last November in an effort to avoid review of its remarkable conduct by the Supreme Court.

This gambit has now proved successful. While four justices must vote to hear a case, this week only three proved willing to consider Padilla's petition challenging his designation as an enemy combatant and his years of detention without a hearing.
Professor Ackerman describes the dangers of the Court's unwillingness to review the Padilla matter:
There will be another successful attack, and the next time around, the president—whoever he or she may be—will be in a position to use Padilla as a precedent to sweep hundreds or thousands of American citizens into military detention camps. By refusing to hear this case, the court allowed the Court of Appeals for the 4th Circuit to have the last word, and these judges unanimously upheld the president's authority to seize an unarmed American at O'Hare Airport. Worse yet, the court's infamous Korematsu decision, upholding the mass detention of Japanese Americans during World War II, remains on the books. While it might seem prudent for the court to evade a confrontation with the president in the short-term, its evasive maneuvers will yield big trouble over the longer term....

There is no disguising the seriousness of our current situation, yet we have no real choice but to confront the dangers ahead and begin a sustained conversation that may lead to serious action by the end of the decade.

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