Civil liberties and enemy combatants: why the Supreme Court's widely praised rulings are bad for America

Reason, Jan, 2005 by Harvey Silverglate

Without such a suspension, wrote Scalia, "a citizen held where the courts are open is entitled either to a criminal trial or to a judicial decree requiring his released." He derided O'Connor's compromise as "an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury." In this instance, Scalia's literalism happened to coincide with the pragmatic knowledge and experience of trial lawyers.

Court Picking Plan

The third case decided by the Court, Rumsfeld v. Padilla, involved a habeas petitioner in a position somewhat similar to Hamdi's. Jose Padilla was also an American citizen whom the Bush administration claimed had a connection to Al Qaeda. Unlike Hamdi, however, he was arrested not on some foreign battleground but at Chicago's O'Hare International Airport after getting off a flight from Pakistan.

Initially Padilla was picked up and held on a "material witness" warrant, a remarkable legal device that allows the government to temporarily detain a witness on the assumption that his testimony is relevant to a criminal proceeding and that his future availability cannot otherwise be assured. Padilla was brought to New York, where his lawyer, Donna R. Newman, filed a motion in the Manhattan federal district court requesting that the material witness warrant be vacated. The government, apparently fearing an abrupt endgame when it came time to present its evidence to justify holding the "witness," changed Padilla's status from material witness to enemy combatant. The feds then spirited him from New York to the naval brig in Charleston, South Carolina. Conveniently, this brig is under the jurisdiction of the most staunchly government-friendly federal appeals court in the nation, the U.S. Court of Appeals for the 4th Circuit.

When Newman learned that her client had been moved to the 4th Circuit, she changed her motion attacking the material witness warrant into a petition for a writ of habeas corpus seeking his release. The district judge kept the case in New York because the government had moved Padilla after Newman filed the motion to dismiss the material witness warrant. Since it was the government's decision to bring Padilla to New York initially, the judge reasoned, it should have to stick with its original choice of forum.

The legal outcome in New York initially favored Padilla. The U.S. Court of Appeals for the 2nd Circuit ruled that he had to be charged or released from military custody, and that he could not be held incommunicado, indefinitely, without charge. But the Supreme Court, in a majority decision written by Chief Justice William Rehnquist and joined by four other justices, with Kennedy concurring separately, held that Padilla had filed his habeas petition in the wrong jurisdiction, and that he had to begin over in the district of his incarceration, namely South Carolina, located in the 4th Circuit. Because this decision forces alleged enemy combatants to file habeas corpus petitions in the federal judicial district in which they're held, the government can in effect select a friendly judicial venue by shipping prisoners off to brigs in the 4th Circuit. Since the Supreme Court has left the lower courts the task of deciding exactly what "due process" for alleged enemy combatants entails, the choice of venue becomes a crucial advantage for the government.