Government rebuffed on Padilla
on Nov 30, 2005 at 3:41 pm
The Fourth Circuit Court of Appeals, apparently nettled by the Justice Department’s shift in position on terrorism suspect Jose Padilla, refused on Wednesday to order his immediate release from military custody and threatened to cast aside its ruling in the government’s favor in the case.
In a surprise order, responding to a Department motion last week that Padilla’s lawyers had not opposed, the Circuit Court ordered new briefing from both sides on whether it should vacate its Sept. 9 ruling upholding Padilla’s detention as an “enemy combatant.” If the Court were to do that, it would remove a major precedent in favor of presidential power during the war on terrorism.
The Justice Department had hoped to have Padilla’s pending appeal to the Supreme Court declared “moot,” since it has now charged him with criminal offenses and ended his designation as an “enemy combatant.” But it also had been expecting that the Fourth Circuit precedent would not be disturbed. That is no longer a certainty.
Here is the background:
On Nov. 22, the government announced it had obtained a grand jury indictment of Padilla on terrorism-related charges, adding him to an already pending criminal case in Miami, Fla. It also announced then that President Bush had “superseded” his order to designate Padilla an enemy combatant and to hold him indefinitely in military custody. Instead, the President ordered the U.S. citizen transferred to civilian custody for purposes of the criminal prosecution.
Padilla, in the meantime, already had filed an appeal to the Supreme Court (docket 05-533), challenging his combatant designation and his prolonged — three-plus years — military detention. It was widely speculated that the government charged him with crime because it feared it might lose the case he had appealed to the Supreme Court, so it switched and turned to the civilian court process.
As part of last week’s maneuvering, the Justice Department asked the Fourth Circuit to authorize Padilla’s transfer from the U.S. Navy brig in Charleston, S.C., to a federal prison in Miami. The Department told the Fourth Circuit that it did not believe it needed that Court’s permission to make the transfer, but did so as a matter of caution. It noted that Padilla’s lawyers — who have long agitated to have Padilla released from combatant status — did not object.
The government clearly expected the Circuit Court to grant the transfer routinely. But nothing had happened on its motion over the past week, leading to speculation that the Circuit Court was not so sure it should grant the transfer request without further inquiry.
The situation became clear with the new order issued by Circuit Judge J. Michael Luttig, with the concurrence of two other judges who were with him on the panel that had upheld Padilla’s designation and detention.
Luttig ordered both sides to address in new briefs this question: “Whether, if the government’s motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla’s military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other.”
The government has until Dec. 9 to file its new brief on that issue. Padilla’s lawyers are to file their brief a week later, by Dec. 16.
The Fourth Circuit had upheld Padilla’s detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been planning to release a radioactive bomb in a terrorist plot in this country. The new indictment levels charges of joining in a terrorist “cell” of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla’s appeal to the Supreme Court. The Circuit Court’s order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.
The new order is available online through Pacer accounts. The case is Padilla v. Hanft, Circuit docket 05-6396.
