High Court Pooh-Poohs Perturbed Padilla Appeals Pitch

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The Supreme Court has punted on hearing the latest appeal of "dirty bomber" suspect (and American citizen) Jose Padilla, thereby sidestepping a challenge to the "enemy combatant" designation that allowed the government to hold Padilla for three years in military custody before filing charges against him in a federal court. From the Wash Times account:

Chief Justice John G. Roberts Jr. and Justices John Paul Stevens and Anthony M. Kennedy issued a brief opinion yesterday, saying there were "strong prudential considerations" requiring the high court to reject Padilla's appeal.

"Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected," Justice Kennedy wrote for the others….

Justice Ginsburg said the case raises the question of "Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant?'?"

"It is a question the Court heard, and should have decided, two years ago," she said. "Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests."

Whole thing here.

The SF Chronicle editorializes on the Supes' "cowardice" thus:

By taking a pass on whether President Bush has the right to detain a U.S. citizen indefinitely without trial, the Supreme Court missed a chance to reassert the balance of powers that are being challenged at every turn by this White House.

More here.

During Chief Justice Roberts' confirmation hearings, Reason's Jacob Sullum lamented the Senate's unwillingness to query the judge on this very question:

That's a shame, because due process is under assault by a president who claims the authority to lock up anyone he deems an "enemy combatant" until the end of the war on terrorism, which seems likely to outlast Roberts' tenure as chief justice.

Still, Jacob held out the hope that, "When Roberts hears terrorism cases, I hope he shows the same respect for process and the same aversion to letting the government make up the rules as it goes along."

Ah well. More here.

Back in January '05, Harvey Silverglate argued that the widely hailed Supreme Court decisions in Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla were really pretty awful when it came to protecting civil liberties. Read all about it here.

NEXT: Huddled Masses, Yearning to Breathe Fareed

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  1. Maybe somebody knows an answer on this:

    Since Padilla has been in civil custody (Jan 2006?), he acquired the right to a speedy trial (assuming I understand the law correctly).

    Is speediness determined based on the date of his transfer to civilian custody, or is speediness measured from the time he was detained.

    If speediness analysis is based on when he was first detained, then does Padilla have a good ground to appeal *any* conviction on the grounds that the military detention violated his speedy trial right?

  2. From United States v. MacDonald, 456 U.S. 1, 6-7 (1982):

    In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: “On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. (emphasis added)

    Therefore, it appears he does not have a speedy trial defense, although he has what, in a real justice system, should be a very strong due process defense between the long delay, the probable failure to preserve testimony/evidence, and the massive ethical violations by the US AG’s office in terms of pretrial conduct. However, I don’t actually hold out hope that the system will work as it is supposed to.

  3. From United States v. MacDonald, 456 U.S. 1, 6-7 (1982):

    In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: “On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. (emphasis added)

    Therefore, it appears he does not have a speedy trial defense, although he has what, in a real justice system, should be a very strong due process defense between the long delay, the probable failure to preserve testimony/evidence, and the massive ethical violations by the US AG’s office in terms of pretrial conduct. However, I don’t actually hold out hope that the system will work as it is supposed to.

  4. So, Nick, what would you guys have to raise the subscription price to to be able to buy a decent server?

  5. Hate to put it so simplistically, but Padilla should walk. Now.

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