In their coverage of the indictment of suspected terrorist Jose Padilla, CBS News and The New York Times reported as fact Attorney General Alberto Gonzales's disputed assertion that the indictment renders moot Padilla's legal challenge of his detention as an enemy combatant. Neither CBS nor the Times informed readers that attorneys and legal experts disagree with that assertion. In addition, USA Today reported that the Justice Department "said it regarded Padilla's pending Supreme Court challenge as 'moot' " but failed to note alternative views. In fact, Padilla's lawyers and some legal scholars argue that Padilla's challenge to the president's power to indefinitely detain suspected terrorists without a criminal charge remains valid and relevant despite the indictment.
Padilla, a U.S. citizen, was arrested in Chicago in May 2002. President Bush designated him an enemy combatant in June 2002; until the November 22 indictment, he was detained by the Defense Department without charges. In February, a federal district judge in South Carolina ruled that Padilla could not be indefinitely detained and ordered the United States to either charge or release him. After the 4th U.S. Circuit Court of Appeals overturned the lower court in September, Padilla appealed to the Supreme Court. In a November 22 press conference announcing the Padilla indictment, Gonzales argued that Padilla's appeal should be denied. Gonzales told reporters that "since he has now been charged in a grand jury in Florida, we believe that the petition is moot and that the petition should not be granted."
As The Washington Post reported on November 23, "Jennifer Martinez, a law professor at Stanford University who is helping defend Padilla, said the appeal remains valid -- in part because his status remains unclear and because other U.S. citizens could still be declared enemy combatants." The Post also quoted University of Maryland law professor and former Justice Department official I. Michael Greenberger, who raised doubts about whether the Supreme Court would agree that Padilla's case is moot:
The Bush administration hopes that the indictment will effectively derail the possibility of an adverse ruling from the Supreme Court in the Padilla case, which could decide to limit the government's ability to detain U.S. citizens as enemy combatants.
But Padilla's lawyers said they will continue to pursue their legal challenge with the high court, and legal experts said the outcome is far from clear.
"The indictment is doubtless a strategy by the Bush administration to avoid a Supreme Court ruling that would likely hold that U.S. citizens cannot be detained incommunicado as enemy combatants if they are detained on U.S. soil," said I. Michael Greenberger, a former Justice Department official who teaches law at the University of Maryland. "There is also some respectable chance that the Supreme Court will not bite on this strategy."
On the November 22 broadcast of ABC's World News Tonight, correspondent Pierre Thomas played footage of Gonzales's claim that Padilla's indictment made his lawsuit "moot," adding, "But Padilla's attorney says the Supreme Court should rule on the limits of the presidential power." ABC then played footage of Padilla attorney Donna Newman saying, "It is important for all of us to have a determination on the extent the president may use his authority to arrest an American citizen and then just hold them without charges." ABC also showed footage of George Washington University law professor Jonathan Turley, who, Thomas said, agreed with Newman's argument: "The Padilla case represents pretty extreme arguments of presidential power being put forward by this administration. It's ready to be resolved."
But the November 22 broadcast of the CBS Evening News simply echoed Gonzales's assertion that the Padilla indictment rendered moot Padilla's challenge to the president's power to detain enemy combatants indefinitely as though it were indisputable. In fact, as the Washington Post and ABC reports indicate, it is very much in dispute. CBS anchor Bob Schieffer told viewers, "The Bush administration decided today to have him [Padilla] indicted, avoiding a Supreme Court showdown over the handling of so-called enemy combatants." Without referencing the competing arguments put forth by Padilla's attorneys and legal scholars, CBS News correspondent Bob Orr echoed Schieffer's statement:
ORR: The transfer of Padilla to the criminal justice system likely means the Bush administration won't have to immediately defend its enemy combatant policy before the U.S. Supreme Court. Padilla has challenged his open-ended detention, arguing the government must either charge him or release him.
ANDREW COHEN (CBS News legal analyst): I think what the government is trying to do here is to get out of this case and to ratchet down the dispute before it loses. I think the U.S. Supreme Court would have taken this Padilla case and said, "You know what, government? You can't hold these U.S. citizens like this for this long."
ORR: By reversing course on Padilla, the administration at a minimum buys itself a little more time for its policy. But legal experts warn that the next court challenge would come very quickly if and when another American is ever held as an enemy combatant. Bob.
Similarly, in a November 23 New York Times article, reporter Eric Lichtblau asserted that the indictment "averts what had threatened to be a constitutional showdown," again, asserting as true what is very much an open question:
The decision to remove Mr. Padilla from military custody and charge him in the civilian system averts what had threatened to be a constitutional showdown over the president's authority to detain him and other American citizens as enemy combatants without formal charges.
The administration had faced a deadline next Monday to file its legal arguments with the Supreme Court in the Padilla case, which the Justice Department said it now considers "moot."
In addition, the Times quoted University of Richmond law professor Carl Tobias: "Tactically, the decision to move him into the criminal courts is very advantageous for the government because it eliminates the uncertainty that the Fourth Circuit could be reversed." But the Times included no indication that any lawyers dispute the claim that Padilla's challenge to his detention is now moot. While the Times did quote Padilla attorney Newman on other matters related to the indictment, the Times did not explain why it did not include the view articulated by Newman herself -- as stated on World News Tonight -- that the Supreme Court should still rule "on the extent the president may use his authority to arrest an American citizen, and then, just hold them without charges."
Similarly, a November 23 USA Today article by Kevin Johnson reported Gonzales's assertion that Padilla's Supreme Court challenge is now moot but presented no indication that alternative views exist. Like the Times, USA Today quoted Newman on other issues. Also like the Times, USA Today did not explain why it did not include Newman's argument that the Supreme Court should still hear Padilla's case:
The Justice Department said Tuesday that Padilla was being returned to the civilian criminal justice system. The department said it regarded Padilla's pending Supreme Court challenge as "moot."
"I'm thrilled with the indictment," said Donna Newman, one of Padilla's attorneys. In his court petition, Padilla argued that he should be charged or released.
"Timing is everything, I guess," Newman said, suggesting that the government sought the criminal charges because it didn't want to risk an adverse ruling from the Supreme Court.
Newman described the indictment as "flimsy." "After 3 1/2 years, with a person being held in solitary confinement and (the government) comes back with something like this?" she said.The Justice Department said the indictment and its timing had nothing to do with Padilla's Supreme Court challenge.