The perils of judicial restraint.

The law, lawyers, and the court.
April 5 2006 2:39 PM

The Perils of Judicial Restraint

If the Supreme Court won't intervene on "enemy combatant" cases, Congress must.

Almost four years ago, Jose Padilla was seized by the Bush administration as an "enemy combatant" upon his arrival at O'Hare Airport. He had arrived in civilian clothes and without any dangerous weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. Attorney General John Ashcroft took to the television to charge him with plotting to attack an American city with a "dirty bomb." The government has long since abandoned this charge, but continued to hold Padilla in military custody—transferring him to the civilian courts last November in an effort to avoid review of its remarkable conduct by the Supreme Court.

This gambit has now proved successful. While four justices must vote to hear a case, this week only three proved willing to consider Padilla's petition challenging his designation as an enemy combatant and his years of detention without a hearing. In an opinion by Justice Anthony Kennedy, three others recognized that the case raised "fundamental issues," but refused to reassure Americans that the courts would safeguard them against arbitrary imprisonment by the commander in chief. Now that Padilla will be tried in Florida on unrelated criminal charges, these swing justices refuse to comment on his three years of imprisonment, even though the government reserves the right to seize him again if it loses the criminal case it has so belatedly begun.

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The court was in a tough position. It is already on a collision course with the president in the Guantanamo case, and so was understandably reluctant to take him on in Padilla v. Hanft as well. Nevertheless, Justice Kennedy's appeals to "pruden[ce]" are profoundly misguided.

There will be another successful attack, and the next time around, the president—whoever he or she may be—will be in a position to use Padilla as a precedent to sweep hundreds or thousands of American citizens into military detention camps. By refusing to hear this case, the court allowed the Court of Appeals for the 4th Circuit to have the last word, and these judges unanimously upheld the president's authority to seize an unarmed American at O'Hare Airport. Worse yet, the court's infamous Korematsu decision, upholding the mass detention of Japanese Americans during World War II, remains on the books. While it might seem prudent for the court to evade a confrontation with the president in the short-term, its evasive maneuvers will yield big trouble over the longer term.

The nation is slowly recovering from the trauma of Sept. 11 and a strong Supreme Court decision reining in the president would have gained strong support right now. But the next time a citizen is thrown into a military brig, the court may be obliged to confront an aggressive president demanding deference in the immediate aftermath of a devastating attack.

According to the Washington Post, the American military has "devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country." When asked about the legal basis for such military intervention,

Pentagon authorities have told Congress they see no need to change the law. According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. "That would be the place we would start from" in making the legal case, said Col. John Gereski, a senior [military] lawyer.

But Gereski also said he knew of no court test of this legal argument …

After months or years of presidential martial law, perhaps a future Supreme Court will intervene to rein in such excesses, perhaps not. But since the present court has chosen to duck the issue at a moment of relative calm, can it really be expected to show more fortitude in defense of freedom at a time of grave panic?

Now that the court has left us in limbo, it is up to Congress to think the unthinkable and define the terms of an "emergency constitution" that will govern the use of presidential power in the aftermath of the next terrorist attack.

In speaking of an emergency constitution, I don't mean to be taken too literally. Nothing I propose will require formal constitutional amendment. The emergency constitution can be enacted by Congress as a framework statute governing responses to terrorist attacks. But this won't happen unless we can conduct a constitutional conversation in the spirit of our 18th-century Founders.

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