Supreme Court Refuses to Hear Padilla Case:
Bush Still Has Right to Indefinitely Detain Anyone, Anytime, Anywhere

Revolution #043, April 16, 2006, posted at

On April 3, in a 6 to 3 vote the U.S. Supreme Court refused to hear the appeal of Jose Padilla over being imprisoned in a naval brig for over three years simply because the Bush administration declared him an "enemy combatant." A statement by Human Rights Watch points out, “The Supreme Court’s refusal to address this case on the merits means that the Bush administration’s assertion that it can unilaterally and indefinitely detain without charge anyone, anywhere on the grounds that they are an 'enemy combatant' remains unchecked.”

It was almost 4 years ago, on May 8, 2002, that Jose Padilla was seized by federal authorities out of a Chicago airport as a "material witness," labeled an "enemy combatant," and locked away in a naval brig for 3 1/2 years. President Bush called him a "bad guy." Then-Attorney General Ashcroft claimed that Padilla was plotting to use a "dirty bomb" on U.S. targets. And federal appeals courts ruled that the president had the authority to detain Padilla indefinitely.

Then, last November, faced with the possibility of Padilla's appeal actually getting a hearing in the Supreme Court, the administration did a complete about face. After years of insisting that Padilla is a "continuing, present and grave danger to the national security of the United States," and that military detention is needed to prevent Padilla from "aiding al Qaeda in its efforts to attack the United States..." (from Department of Justice court papers), the U.S. government finally brought criminal charges against Padilla that carry a possible life sentence if convicted—accusing him of being involved with members of a "radical Islamist" cell, and of soliciting funds and recruits to wage "violent jihad" in overseas countries like Bosnia, Chechnya, and Afghanistan. No dirty bomb. No plots to kill Americans or blow up U.S. targets. The entire pretext for holding Padilla disappeared with the same ease in which they made him vanish from public sight four years ago.

Ironically, the outrageous maneuver by the government became the reason for the Supreme Court to refuse even a hearing. "Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical," declared Justice Kennedy. Since Padilla had demanded to be released immediately or be charged with a crime, argued Kennedy, and since the government had charged Padilla, the issue was moot, and Padilla "has received the principle relief he sought."

Moot? Hypothetical? Simply dredging up charges against Padilla to circumvent a direct hearing on the President's right to incarcerate whom he chooses—a right the government has not abandoned—does not make this issue "moot." The very real 3 1/2 years Padilla spent in naval brig was not "hypothetical.” The government's mass round-ups and imprisoning of immigrants in the wake of 9/11 was not "hypothetical." The "rendering" of prisoners by the U.S. government to hidden torture centers in eastern Europe and other places and the torturing of those prisoners are not "hypothetical." These are the very real issues at stake, if the view that incarceration depends on the Presidents say-so becomes the new legal standard.

The holes in the majority court decision were glaring enough that Kennedy's fellow Supreme Court judge, Ruth Bader Ginsburg, was compelled to write in her dissent, "This case, here for the second time, raises a question 'of profound importance to the Nation'... 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... Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests."

With the Supreme Court's refusal to hear the case (Jose Padilla v C.T. Hanft, United States Navy Commander, Consolidated Naval Brig), the right of the president to simply have someone seized and imprisoned on his say-so remains unchallenged in court. It represents a major break from long-established legal principles of U.S. law—the right to speak to a lawyer when arrested, no imprisonment without a trial where the accused can hear evidence and question witnesses, no indefinite detention without charges, and so on. While the history of this country is filled with instances where those rights and principles have been trampled—most blatantly in the widespread denial of these rights to Black people and other oppressed nationalities in the U.S.—to set incarceration by presidential decree as the new standard is a major leap in a fascist direction.


Sometimes consequences are more clearly seen from afar. For decades, mothers have assembled in the Plaza de Mayo in Argentina demanding to know what happened to their missing children. Disappeared from their homes. Disappeared from off the street. Taken, imprisoned, and often murdered because the fascist military regime that ruled Argentina said that they could.

Jose Padilla was disappeared from a Chicago airport, and thrown into a naval bring without charges. The analogy is obvious. The implications are clear. The consequences—should we fail to see what this represents and fight like hell to stop it—will be a nightmare.

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