Blogging will at most be light until Monday, as I’ll be visiting family in the DC area.
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Lamentably Florida’s 18th congressional district remains one of several state congressional races in which no Democrat has yet announced plans to run. See the list of congressional races compiled by the DCCC.
Another reason I love the Internet: finding this list of Hard To Find Internet Retailer Phone Numbers took about six seconds.
As the legal world knows by now, the United States this morning unveiled an indictment against Jose Padilla, the man formerly known as the “dirty bomber” — to be tried here in Miami some time next year. (See Marty Lederman for details and atmosphere.) The Washington Post reports that “Padilla will be transferred from a U.S. Navy brig in South Carolina to Justice Department custody at a federal detention facility in Miami, according to an order signed by Bush on Sunday,” which appears to be here, and which was followed by the government’s Unopposed Emergency Application and Notice of Release and Transfer to Custody of Petitioner Jose Padilla, filed today.
It’s a bittersweet moment for the rule of law. On the one hand, getting Padilla out of the ranks of the disappeared and into the ordinary criminal justice system is a good thing, and it’s mildly cheering that even this administration fears even this Supreme Court enough to want to prevent it from ruling on the asserted power to grab any citizen, anywhere, and hold him or her without regard to the Bill of Rights for as long as the President is minded to order.
On the other hand, this decision to charge comes rather late, at the eleventh hour, and risks leaving in place a circuit court decision with draconian implications for Presidential power. The precedent set by this case — including that of justice delayed to the point of denial — cannot, should not, must not be allowed to stand. So long as our government claims the power to lock any one of us up in solitary, indefinitely, without trial, on the unsupported say-so of any official no matter how highly placed, we can give ourselves no airs before the other authoritarian regimes of the Americas.
Although originally rumored more than a year ago (!) the latest moves in the Padilla case are striking developments in several ways.
What he said:
In Denver, you now have to show an ID card to ride a public bus: Deborah Davis :: Want to Ride? Papers, Please.
But wait! It’s not just any bus — it goes through a federal facility (“the Denver Federal Center, a collection of government offices such as the Veterans Administration, the U.S. Geological Survey, and part of the National Archives”). That does distinguish it a little from a regular bus that goes on a normal street, but not very much, especially as there’s no notice as to the ID requirement before you board the bus, unlike at the entrance to a federal building.
The ACLU is on the case, and we’ll see what happens to this case presenting one of the issues left open in the unfortunate Hiibel decision.
The aspect of the case that especially caught my eye is the arresting officer’s statement in the Incident Report . The arresting officer states that he told the defendant (and I’m sure he honestly believes) that the Supreme Court approved of a requirement that an ID be shown. But — as I predicted would happen — this police version of the holding mis-states the law, at least as regards public spaces (federal buildings may be a different story).
In the most recent case on the subject, Hiibel, the Supreme Court explicitly left the “show your ID” question open: the Court said that state legislatures can enact “stop and identify” laws which empower a police officer to require a person to identify themselves — orally — in cases where there is some minimal reason to suspect someone (i.e. a Terry stop). That’s a far cry from both requiring showing of an ID, and especially from suspicionless ID requirements. Indeed, the Court explicitly did not decide whether an ID could be required.
In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P. 3d, at 1206 (opinion of Young, C. J.) (The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists.). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means — a choice, we assume, that the suspect may make — the statute is satisfied and no violation occurs.
(The majority also said in no uncertain terms that the decision only applied when there were no 5th Amendment issues, but there presumably are not any in this case either.)
There isn’t much doubt that the courts accept that the government can require ID to enter public buildings, although this has occasionally been controversial in connection with some court proceedings in which the issue is whether the defendant must disclose ID. There’s some danger that this case might get decided on that issue rather than the broader right to travel which, unfortunately, is being eroded yet again.