That Padilla Case

Everybody is reporting that the conservative Fourth Circuit has refused the government’s request to transfer Jose Padilla to Miami. The Bush administration wants to prosecute Padilla for different, lesser, crimes than the original ‘dirty bomb’ charges used to detain him for three and a half years as an enemy combatant. Smelling a rat, the Fourth Circuit seems to have come to the conclusion that the administration was just trying to avoid having the Supreme Court review the Padilla case. This could have lead to embarrassing conclusions about the basis for Padilla’s lengthy (and now continued) detention.

This ruling might be a good thing for Padilla, (who may actually get the Supreme Court review). But for civil liberties generally, this is an example of how judicial restraints are always going to be too little too late. The public has long been wise to the weak basis of the government’s case, not least because the administration’s lawyers never produced a shred of evidence to support its claims. From this perspective, what is notable is not that this court has finally put its foot down, but how permissive it has been in the war on terror.

Courts don’t lead. It is not their job – theirs is to apply the law in a way that ensures maximum consistency and stability, while remaining within a more or less mainstream understanding of justice. Even ‘vanguardist’ moments like Brown v. Board were predicated on decisive social and political changes already happening out in the public sphere. Indeed, the shift in public opinion against many of the current administration’s actions has likely been one influence in the court’s decision. It is on us to change those understandings: to alter views on the relation between liberty and security, and on the proper use of state powers.