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.
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