Padilla Case Ends with a Whimper, Not a Bang

^{Category: War on Terror}

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Centuries from now, when legal historians write about the constitutional implications of the War on Terror, they will not be talking very much about Jose Padilla. A former Afghan mujahadeen who became the only American citizen detained as an enemy combatant while actually in the United States, Padilla was detained by military officials in 2002 on charges that he was working with al-Qaeda to construct and eventually use a suitcase-held nuclear "dirty bomb." Although he was detained through military jurisdiction, he sued in civilian courts--causing the Supreme Court to say in 2004's Padilla v. Rumsfeld that his case had been appealed through incorrect jurisdictions, and would have to be re-appealed through military courts before the Supreme Court issued its ruling. In November 2004, Padilla was formally charged as a U.S. citizen by a civilian court in Miami and his "enemy combatant" status was terminated. This rendered his original appeal obsolete, but he continued his appeal to the Supreme Court anyway. Yesterday the Court formally declined to hear his appeal in Padilla v. Hanft, rejecting the case again on a technicality--this time that he wasn't actually still classified as an "enemy combatant," so there was no judgment for the Supreme Court to make. As Justice Anthony Kennedy put it:

Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.

In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises ...

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla's current custody is part of the relief he sought, and that its lawfulness is uncontested.

As much as I would like to see the "enemy combatant" designation formally struck down, I think Kennedy's logic is sound. The Supreme Court is a court, not a philosophy club. It is not in the business of making abstract judgments about situations that no longer exist.

Oh, and the name that future constitutional historians will be talking about? Yasser Hamdi.