Thats NOT Justice.
WASHINGTON -- Jose Padilla, the American citizen held for more than three years in military custody as an enemy combatant, fell one vote short on Monday of persuading the Supreme Court to take his case.
 Jose Padilla, center, held as an 'enemy combatant' for more than three years, is escorted by federal marshalls in this file photo upon his arrival in Miami, Thursday, Jan. 5, 2006. The government transferred Padilla from military to civilian custody in January. (AP Photo/Alan Diaz) |
Nonetheless, the outcome was not the unalloyed victory for the Bush administration that it might have appeared to be.
Three justices who voted not to hear the case — Justices Anthony M. Kennedy and John Paul Stevens, along with Chief Justice John G. Roberts Jr. — filed an unusual opinion explaining their position. They noted that Mr. Padilla, who is now out of military custody and awaiting trial in federal district court in Miami on terrorism-related charges, was entitled to a criminal defendant's full range of protections, including the right to a speedy trial.
Most significant, the three justices warned the administration that the federal courts, including the Supreme Court, stood ready to intervene "were the government to seek to change the status or conditions of Padilla's custody."
The comment was clearly a reference to the sequence of events last fall, when the administration, days before it was due to file a brief in response to Mr. Padilla's Supreme Court appeal, announced that it had obtained a grand jury indictment and planned to shift him to civilian custody.
The administration then filed a brief arguing that the appeal had to be dismissed as moot, since Mr. Padilla was getting the relief he requested when he filed his original petition asking to be released from custody or charged with a crime.
The Miami indictment charges him with providing material support to terrorists as part of a cell that is said to have sent money and recruits overseas. He is being held without bail; a trial is scheduled for Sept. 9.
In simply turning down Mr. Padilla's appeal, Padilla v. Hanft, No. 05-533, the court did not make a formal determination that the case was moot. But Mr. Padilla's transfer from military custody to the civilian justice system rendered his legal claims, "at least for now, hypothetical," Justice Kennedy said in the explanatory opinion, which the two other justices signed.
"Even if the court were to rule in Padilla's favor, his present custody status would be unaffected," Justice Kennedy said.
In shifting Mr. Padilla to civilian custody, the government said that it reserved the right to redesignate him as an enemy combatant and send him back to military custody. His lawyers argued that for that reason, the Supreme Court should hear his case.
Justice Ruth Bader Ginsburg agreed, filing an opinion on Monday dissenting from the court's refusal to hear the case.
"Nothing the government has yet done purports to retract the assertion of executive power Padilla protests," Justice Ginsburg said, adding that "nothing prevents the executive from returning to the road it earlier constructed and defended." She said she was "satisfied that this case is not moot."
Justices David H. Souter and Stephen G. Breyer did not sign Justice Ginsburg's opinion, noting only that they, too, had voted to hear the case.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., who voted against hearing the appeal, neither signed Justice Kennedy's opinion nor offered an explanation of their own. It is possible that they objected to the language in the Kennedy opinion about the court's readiness to intervene "promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised" if the administration were to change Mr. Padilla's status once again.
The silence of these three justices was only one of several mysteries surrounding the court's disposition of the case, among the most prominent of the cases generated by the administration's handling of those it has labeled enemy combatants.
One mystery is what took the court so long. Mr. Padilla's appeal had been pending for months, and had been taken up by the justices at their weekly closed-door conference eight times since mid-January. That length of time was hardly needed to produce the four pages of opinions, three for Justice Kennedy and one for Justice Ginsburg, that the court issued on Monday.
Another mystery is the role played by Justice Stevens, who signed Justice Kennedy's opinion rather than provide a crucial fourth vote to his natural allies — Justices Ginsburg, Souter and Breyer. Two years ago, Justice Stevens wrote for Justices Ginsburg, Souter and Breyer in dissent from an earlier ruling in Mr. Padilla's legal saga.
That was a 5-to-4 decision holding that the federal appeals court in New York, which had ordered Mr. Padilla released, lacked the authority to decide the case. The five justices in the majority then required Mr. Padilla to file a new habeas corpus petition seeking release in South Carolina, where he was held in the Navy brig in Charleston.
Justice Stevens, dissenting, criticized the majority as failing to address the merits of Mr. Padilla's case, which he said "raises questions of profound importance to the nation."
In her dissenting opinion on Monday, Justice Ginsburg quoted those words, identifying them as those of Justice Stevens. As a careful writer, not given to wasting words herself, Justice Ginsburg appeared to be sending a signal of her dismay at Justice Stevens's failure to join her in dissent this time.
The two mysteries — the lengthy consideration and the role of Justice Stevens — may not be unrelated. It is possible that the Kennedy opinion was the result of a long negotiation, and that the price Justice Stevens exacted for not giving the dissenters the crucial fourth vote needed to hear the case was insertion of the language that can be read as warning the administration not to presume on the court's patience.
The test may come if Mr. Padilla is acquitted by a jury in the Miami federal case or receives and serves a short sentence. The government would then have to decide whether to set him free or find a way to keep him confined.
The federal court charges against him bear little if any relationship to the accusations the administration made after he was arrested after arriving at O'Hare International Airport in Chicago on a flight from Pakistan. He was then described as an operative for Al Qaeda on a mission to detonate a dirty bomb in the United States.
In another development on Monday, the court agreed to resolve a dispute among the lower courts with implications for thousands of deportation and criminal sentencing cases. The question is whether a drug offense that is only a misdemeanor under federal law, but that an individual state's criminal code treats as a felony, is deemed an "aggravated felony" for purposes of immigration law or for adding time to a federal sentence.
The issue is particularly important in immigration law because deportable aliens with "aggravated felonies" on their records are ineligible for administrative discretion, making their deportation essentially automatic, no matter the individual circumstances. To resolve the issue, the court accepted two cases, Lopez v. Gonzales, No. 05-547, and Toledo-Flores v. United States, No. 05-7664.
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