All Tied Up: Padilla, Alito and the Graham-Levin Amendment

I can't help but think that there is more going on with the Padilla case than at first meets the eye, that the entire issue of the criminal indictment of Padilla on November 22 was just part of a ruse designed to forestall an expected Supreme Court review until the administration had fully installed Samuel Alito onto the bench. The White House and anyone else who has been paying attention to the various documents that have revealed Alito's support for police-state action are well aware that having Alito on the Supreme Court would be a boon in any hearing the DoJ might bring before the justices regarding the indifinite detention of "enemy combatants."

First, let's look at a time line of various events surrounding the Padilla case and the Alito nomination.

September 9, 2005 - 4th Circuit upholds Padilla military detention. Padilla's lawyer files an appeal with the Supreme court.
October 4, 2005 - Miers nominated to SCOTUS.
October 27, 2005 - Miers withdraws her nomination
October 31, 2005 - Bush nominates Samuel Alito to the Supreme Court.
November 15, 2005 - Strongly condemned by the Center for Constitutional Rights (CCR), the Senate passes the McCain-supported Graham-Levin amendment restricting writs of habeas corpus specifically directed at detainess in Guantanomo Bay. Passed as an amendment to the defense authorization bill
November 22, 2005 - Six days before the DoJ had to file legal arguments with SCOTUS in the Padilla case and after three and half years in prison -- held without charges -- suddenly Padilla is indicted on new charges and DoJ aims to take the case to criminal court but not on the original allegations of involving the 'dirty bomb' or Al-Qaeda ties. Gonzales specifically mentions that the Supreme Court case is now "moot." and that Padilla's previous designation as an "enemy combatant" was now "legally irrelevant”.

December 16, 2005 - Lawmakers Back Use of Evidence Coerced From Detainees

The provision, which has been a subject of extensive bargaining with the Bush administration, could allow evidence that would not be permitted in civilian courts to be admissable in deciding whether to hold detainees at the American military prison in Guantanamo Bay.

December 22, 2005 - Luttig's 4th Circuit Court denies the maneuver to criminal court.
December 28, 2005 - DoJ appeals and asks the Supreme Court to overrule the 4th Circuit decision.
January 9, 2006 - Alito hearings planned. full Senate vote expected by Jan 20.

This sure is starting to look like the DoJ is stalling in the hopes of not having to face the Supreme Court until Alito gets on the bench. I don't hold much hope that that won't happen. The Republicans will pull out the stops and used their "nuclear option" should the Dems threaten a fillibuster. I certainly don't see the craven Bill Frist having any compunction about doing that in order to get his cherished "up-down" vote for Alito, in which case Alito is in.

I can't help but wonder, though, what the DoJ would have done had the 4th Circuit ruled against the military detention of Padilla in the first place, though given Luttig's heritage, that is probably an unlikely thing to imagine. Would they have appealed it to the Supreme Court then? Since it appears to most that the DoJ is trying to avoid a SCOTUS review of the case, this couldn't have been seen as a very good option, at least right away. But once the case got to the 4th Circuit, it should have been obvious to DoJ lawyers that the Padilla case was going to the Supremes, on way or another, as a loss by Padilla most certainly was going to be appealed, which it was, and it seems hard to believe that the DoJ wouldn't appeal a decision against them.

Which is where the Supreme Court nomination comes in. With the DoJ knowing the case had to be going to the Supreme Court, Bush nominates Alito, who is hand-picked as a man with a legal outlook that clearly would support the indefinite detention claims of the White House. The surprising and unrelated criminal charges brought against Padilla appear to be nothing more than a stall tactic designed to drag out the case until a favourable SCOTUS bench has been fully populated. And at this point, it looks like it will happen.

Should the current DoJ appeal of the 4th Circuit's ruling against Padilla's transfer drag on for awhile (I have no doubt they will be able to drag it out for awhile yet) and until Alito is sworn in, I would not hesitate to guess that suddenly the DoJ will become much more willing to pursue the Padilla case in front of the Roberts Court. Roberts, of course, is already there and is also a jurist who has displayed a penchant for the heavy hand of government authority.

The only part of this that makes no sense is the Miers nomination. Why stuff that in there and stall Alito getting to the bench? It may have been part of a larger scheme to create a some outrage, which would then make the otherwise unpalatable Alito look a little less so. Or it may have just been Bush acting on his own, which usually results in some untoward outcome. This may have been what necessitated the "surprise" Padilla indictment. Or it may have been a putative monkey wrench designed to make the Alito nomination, the Graham-Levin amendment and the Padilla case look a little more unrelated.

With the Graham-Levin amendment now on the books, a decision by the Supreme Court in favour of the DoJ and against Padilla will effectively shut down any further detainee challanges to the odious White House policy of indefinite detention. At this point, if I were Padilla, I'd be inclined to take my chances in criminal court because at least he will get into court. But don't look for the DoJ to let that happen either. I doubt they have any intention of ever trying Padilla on these new charges.

Here is what I can see happening: the DoJ stalls long enough and until Alito is on the big bench. At this point, the DoJ withdraws its criminal indictment of Padilla knowing full well that Padilla's original case will be struck down by the Supremes. I expect the vote will go exactly as it did in Bush v. Gore, with Roberts, Alito, Scalia, Thomas and Kennedy ruling in favour of the DoJ position. Padilla is marched off to Gitmo, never to heard of again. No other legal challenges to the policy can be brought by any other detainees, their right to habeas corpus having been callously revoked by a craven Congress, which, yet again, appears only to willing to do the necessary bidding on behalf of this shameful White House administration.