Showing that is has no real concerns for the rights of citizens guaranteed by the Constitution the Supremes have decided not to rule on the Shrubbery’s violation of US law in his Star Chamber proceedings against “enemy combatants”.
Well, you certainly can’t call the Roberts Court activist.
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7 comments
The Roberts Court gets a pass from me on this one. I agree with the three Justices in the minority that this is an important case–something I feel certain that at least some of the other six also agree with.
But the fact that the Shrubbery has transferred Padilla to the jurisdiction of the federal court system renders this appeal essentially moot. The Supreme Court has always resisted ruling on hypothetical situations, ad on second-guessing after the fact. And you’re damn right I think that tradition is Reason #1 behind the Bushoviki’s decision to transfer Padilla to the ordinary courts. Once he’s no longer held incommunicado as an enemy combatant, instant dismissal of the case. Short, sweet, and most importantly of all, nobody from the Shrubbery has to go on the witness stand and swear to tell all sorts of revealing and potentially highly embarrassing things about the innermost workings of the Bush misadministration.
Except that he can thrown Padilla back into the purgatory of enemy combatant status at any time unless there is a definitive ruling that the power does not exist. That’s why Padilla’s attorneys went forward with the appeal.
This ruling results from a practice that seems very much like another apparent emerging Bush administration signature, specifically, the use of illegally obtained evidence to initiate a case, later dropping charges if the illegality is challenged. This is a bit different, but just as scary: Padilla never got his day in court for the reasons he was allegedly held without charges (as you pointed out, the current charges are not for the same allegation), so the Bush administration could still jail him again and hold him for the original accusation (can’t say “charge,” can we) if they wished. It’s a sort of back-door double jeopardy, very much a deliberate challenge to that phrase of the Fifth Amendment. It seems to me that if one acknowledges the legitimacy of “enemy combatant” status, there is no end to such manipulation; a defendant effectively has no due process rights if the president says he has none. Russ Feingold is right: that sounds like monarchy to me.
When I read your subject line, Bryan, I thought you were prepared to rant about those little rowboats without which limerick writers may as well retire. Who knew the Justices were also fond of them!
That’s still a little too hypothetical a situation for the Court to be comfortable taking it, Bryan. Bush might transfer Padilla back to enemy combatant status, but he also might not. Until he does so, however, Padilla has no standing to complain of his treatment at the hands of the Shrubbery, and no harm has resulted to anyone else such that there is a justiciable issue for the Court to handle.
Of course the Constitution is imperiled, but it is not a person within its own meaning. Without a person at the bar, the justices have nothing to go on.
It has been suggested that this was “horse-trading” for votes on the Hamdi case on the part of John Paul Stevens.
I know that it is considered moot, but that doesn’t make Padilla “whole” for the three years he spent as an enemy combatant. That would be the basis for the “tort” or “injury” underpinning the case.
Padilla would have to start all over again and charge a violation of his civil rights, and I’m not sure he would want to do it.
With a post title like this I am so glad you aren’t subject to the occasional Spoonerism.
I do attempt to leave those to Steve and Mad Kane and only occasionally descend to the odd bad pun.