Government willing to give up Padilla precedent
on Dec 9, 2005 at 4:03 pm
The Justice Department told the Fourth Circuit on Friday afternoon that it has no objection to wiping out that Court’s significant victory for presidential power, upholding the detention of a U.S. citizen captured within the U.S. as a terrorism suspect. It argued that the case of Jose Padilla is moot, because he now faces criminal charges in civilian court.
In the same filing, the government renewed its plea for permission to transfer Padilla from military to civilian custody “as soon as possible” so he could be tried on those charges. Once that transfer occurred, the filing said, that would eliminate “the directive that provided the authority to detain petitioner as an enemy combatant.” It conceded a “theoretical possibility” that he might again be designated an enemy combatant, but said that was mere speculation.
If the Circuit Court agrees, the withdrawal of its prior ruling would eliminate a major precedent on President Bush’s wartime powers, but the government apparently is willing to accept that outcome if — as the government expects — it would avert any further inquiry into the facts behind Padilla’s seizure, and perhaps also thwart his pending appeal to the Supreme Court. The government filing said that it intends to oppose Supreme Court review of that case “on several grounds, including that his habeas action is moot in light of intervening events.” Its reply is due in the Supreme Court next Friday.
The Fourth Circuit on Sept. 9 upheld President Bush’s authority to detain a suspected “enemy combatant” who is also a citizen, no matter whether that individual was captured on U.S. soil or overseas in a combat zone. But it did not rule on whether, in Padilla’s case specifically, the facts justified his capture at O’Hare Airpot and his three-plus years of detention. Padilla has asked a District Court in South Carolina to devise a procedure to decide that factual challenge — another proceeding that the government now wants headed off.
“Further review of the habeas peititon in the district court, this Court, or the Supreme Court would be wholly imprudent in light of the extremely sensitive constitutional issues raised by the petition. It is axiomatic that courts should avoid the resolution of constitutional questions wherever possible,” the brief asserted.
As the Padilla case unfolds further, in the courts in which it is pending, a key issue will be whether the government will retain the option of designating Padilla anew as an enemy combatant, at some future point — for example, if he were to be acquitted in civilian court.
The government addressed that possibility in its filing Friday. “Any concern that the President could later decide, based on an independent determination, to redesignate petitioner as an enemy combatant is entirely speculative and thus insufficient to meet the constitutional case-or-controversy requirement or come within the mootness exception for cases capable of repetition yet evading review.”
The “hypothetical scenario” of a new designation of Padilla as an enemy combantant, it said, “would not fit within the narrow exception to the mootness doctrine for actions that are capable of repetition yet evading review.” Even if that scenario should develop, it said, further detention would not be too brief to bring a new challenge in court, and thus the new designation would not evade judicial review.
The Circuit Court on Nov. 30 had asked both sides in the Padilla case to file new briefs on whether, in view of the new criminal charges, its September decision in the case should be vacated. The response of Padilla’s attorneys is due next Friday. The Circuit Court order cited the different array of facts underlying that ruling and those underlying the new criminal indictment of Padilla by a federal grand jury in Florida, in an already pending terrorism case against other defendants.
The new charges are based on government allegations that seem considerably less serious than the claims long made against Padilla as an enemy combatant — claims that he was preparing to release a radioactive bomb in this country, and that he was preparing to blow up apartment buildings in New York and elsewhere. The Florida indictment accuses him of two counts of conspiracy to engage in violence overseas or to support terrorists abroad, and one count of providing support to terrorists overseas.
“The fact that those charges involve different facts from thsoe relied upon by the President in ordering petitioner’s military detention is not consequential,” the Justice Department argued. “The President’s authority to detain enemy combatants during ongoing hostilities is wholly distinct from his ability to charge them for criminal conduct.” Moreover, it said, the indictment involves “gravely serious offenses” that could lead, upon conviction, to a life prison sentence.
The Circuit Court has no timetable for acting on the status of the Padilla ruling, or his continued detention by the military. The case is Circuit docket 05-6396, Padilla v. Hanft.
