Slate's Jurisprudence: High Court Dodges Padilla

The U.S. Supreme Court has yet again dodged a controversial issue, deciding not to review whether Jose Padilla, an American citizen held for years by the United States as an enemy combatant, was improperly detained. Madeleine Brand talks to Slate legal analyst Dahlia Lithwick about the decision, which was opposed by three justices.

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ALEX CHADWICK, host:

First, the Supreme Court today decided not to decide a key case about whether the federal government can hold U.S. citizens indefinitely without a charge. The case involves Jose Padilla, who was held for three years as an enemy combatant. He's now under federal indictment on conspiracy charges. His case will be heard by a regular court and that, in the words of Justice Anthony Kennedy, made the issues raised by his detention hypothetical.

Joining us to help understand this complex case is Dahlia Lithwick. Dahlia, thank heavens you're here. Legal analyst for the online magazine Slate, and for DAY TO DAY. Welcome back to the program.

Jose Padilla is in a regular court and therefore things are okay with these federal charges. Explain how we got to where we are, can you?

DAHLIA LITHWICK reporting:

Sure. You'll probably remember the part where Jose Padilla was a U.S. citizen, former gang member from Chicago, convert to Islam who got involved with the Taliban, picked up in a Chicago airport in 2002, and the Bush administration claimed at the time that he was planning to detonate radioactive bombs. He became known as The Dirty Bomber.

He was chucked into military custody and held in a Navy brig for almost three and a half years.

Now, the Supreme Court has already heard part of this case. They heard this twinned with the Hamdi case in 2004. They didn't get to the merits of the Padilla case. They sent it back to a lower court on a technicality.

But in the Hamdi case, a similar case, they said, Look, American citizens grabbed and called enemy combatants have some kind of rights to have their claims heard by a neutral decision maker.

That meant that the government had to put them in some kind of tribunal. Well, you'll remember the government sent Hamdi back to Saudi Arabia.

Padilla, after more lingering in the courts, was suddenly pulled out of military custody and put on trial in a federal court on regular criminal charges. Charges, by the way, that have nothing with to do with being a dirty bomber or even the lesser charges that the government had claimed, planning to blow up apartment buildings.

Now the charges are these sort of vague conspiracy charges: conspiracy to murder Americans, conspiracy to provide material support to the enemy.

CHADWICK: And this case before the Supreme Court, his lawyers were saying, Look, this guy has been held for a long time in detention without any resolution and without access to a regular court, so we want something done about that. Right?

Well, what did they want? Did they think he should be allowed to go free?

LITHWICK: Well, that was part of the problem, because what they wanted had partly already been granted, which was to put him into the regular criminal justice system. And that's precisely what the government argued. The Bush administration argued, Look, this is moot, because he's no longer in the custody of the military.

However, he went on and argued, Look, we need to challenge this whole notion that the executive branch has the power to label Americans caught on American soil enemy combatants and hold them indefinitely.

The court was very careful today to say, We're not going to hear this case, but we're also not going to say it's moot.

CHADWICK: So they're not saying that this argument doesn't matter anymore. They did decline to hear the case, though. Why? What did the court majority say?

LITHWICK: Well, very interesting. It's very, very rare. I mean, the court declines to hear cases every day. What's rare is for everybody to publish opinions explaining why they thought what they did.

Justice Kennedy, speaking for three of the six justices who voted not to hear the case, said essentially this. Look, this is entirely speculative and hypothetical, these issues at this point, because he's already in a criminal trial process in Florida. However, they said, these are incredibly fundamental issues regarding separation of powers.

And they also essentially told both the Bush administration and the court system, We're going to be watching you, and if you try to pull something like yanking him back into military custody, we're going to be watching. That's why we're not going to declare this case moot. We're going to keep an eye on what goes on here.

CHADWICK: And was that Chief Justice Roberts' opinion that said, I'm going to keep watching this?

LITHWICK: Well, it was authored by Justice Kennedy but the very strange triumvirate of Kennedy, John Paul Stevens and Chief Justice Roberts were the ones who signed that opinion.

CHADWICK: It's a new day at the court. Opinion and analysis from Dahlia Lithwick. She covers the court for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

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