PolySciFi Blog

Wednesday, November 23, 2005


Legal Shenanigans

More than three years after he was imprisoned, American citizen Jose Padilla has finally been charged with a crime. Apparently there is one very special set of circumstances under which the criminal justice system is adequate for handling terrorists: when the executive branch thinks it might be politically embarassing for a case to continue to the Supreme Court.

You see, now that Padilla has been charged with a crime, the Supreme Court is under less pressure to grant certiorari to his appeal--he is now being treated like a criminal defendant. This leaves the 4th circuit's last decision in his case as binding precedent, at least within the 4th circuit. And that decision allows the executive branch to detain American citizens indefinitely without charging them of a crime or giving them access to counsel. Jack Balkin has a good write-up of what's going on here. Money quote:
Since 9/11 the Bush Administration has sharply criticized others for daring to suggest that citizens accused of terrorism should be dealt with through the criminal justice system. It has insisted that 9/11 changed everything and that terrorism must be dealt with through novel methods that dispense with the ordinary protections that the Constitution affords the accused. Now it has backtracked in one of the most prominent cases and done precisely what it said it could not do-- treat Padilla as a criminal defendant.
The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it.
There's a good write up of the 4th circuit's tenuous logic here.

H/T The Volokh Conspiracy.


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