On Monday, the Supreme Court of the United States refused to hear the appeal of Jose Padilla, who was detained as an enemy combatant for more than three years after being arrested when returning from a 2002 trip to Pakistan. During that time, no charges were brought against Padilla and he received no representation; he was simply detained, and it seemed as though he would be indefinitely.
According to Court Justice Ruth Bader Ginsburg, it’s a case that raises a question “of profound importance to the nation.” So why, for a second time, did the justices refuse to answer that question?
The federal government made them do it.
In late 2005, Padilla was charged with participating in a North American terrorist group that funneled money to terrorist groups overseas. The timing was no coincidence – Padilla’s appeal was pending review by the Court at the time. Because charges were formally brought, Padilla’s legal status changed from enemy combatant to criminal defendant. The issue seemingly evaporated, and the cumbersome questions raised by the appeal seemingly evaporated.
In a dissenting opinion representing Chief Justice John Roberts, Justice Anthony M. Kennedy and Justice John Paul Stevens, Kennedy wrote that while the case raises “fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, (the case) also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.”
In essence, what the three are saying is that because of the bureaucratic end run performed by the Bush administration, the issues raised by the case are no longer relevant.
But, as Ginsburg said, “Nothing prevents the executive (branch) from returning to the road it earlier constructed and defended.”
Kennedy’s opinion acknowledged that concern, but he wrote that it “can be addressed if the necessity arises.”
The necessity has arisen.
As acknowledged by the justices, the case raises fundamental questions about the authority of the executive branch and the extent of its powers. Padilla’s appeal isn’t hypothetical; it’s real. He was illegally detained for years and may be held illegally in the future. Whether he deserved that detention or whether the executive branch can rightfully wield the powers that put him there isn’t for the layman or the president’s administration to decide; it’s for the Court to decide. Sooner or later, these questions will have to be answered. It’s in the interest of the nation that the Court do so sooner.