Government seeks Padilla’s transfer
on Dec 28, 2005 at 3:48 pm
The Bush Administration, protesting that the Fourth Circuit Court has engaged in an “unprecedented and unfounded assertion of judicial authority,” on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison.
The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made “an unwarranted attack on the exercise of Executive discretion,” raising “profound separation-of-powers concerns” if not remedied swiftly. “The Fourth Circuit’s order defies both law and logic,” the new filing contended.
Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla’s case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla’s pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla’s placement, and thus Clement turned to the Justices seeking what the lower court had denied.
In refusing the transfer request, the Fourth Circuit, according to the new application, sought “to exercise an unidentified and unprecedented judicial authority to disregard a presidential directive to transfer an enemy combatant out of military custody, despite the agreement of both parties that the transfer should take place.” (Padilla’s lawyers have supported the transfer request, but insist — contrary to the Administration view — that even after a transfer the case would emain a live controversy for the Supreme Court.)
The Fourth Circuit’s action, the application said, “second guesses and usurps both the President’s Commander-in-Chief authority and the Executive’s prosecutorial iscretion in a manner inconsistent with bedrock principles of separation of powers.”
The government’s application, which went to Chief Justice John G. Roberts, is the latest dramatic development in one of the most significant test cases on presidential powers amid the war on terrorism. The Court’s reaction to the new gesture may provide the first sign of how the Justices feel about that constitutional controversy.
The Fourth Circuit in September upheld presidential power to detain Padilla, suspected of planning terrorism acts inside the U.S., as an enemy combatant. That is the decision Padilla is now challenging in his Supreme Court appeal (Padilla v. Hanft, 05-533). But the Bush Administration, in a move that Padilla and the Fourth Circuit interpreted as an attempt to undercut his appeal, obtained criminal charges against Padilla, and decided to take him out of a Navy brig in Charleston, S.C., and then shift him to Miami for a coming criminal trial.
The Fourth Circuit, suggesting that the government’s shifting positions might mean that Padilla’s detention as an “enemy combatant” may have been a mistake, refused to clear the transfer and declined to wipe out its September ruling — a decision that must remain intact if Padilla’s appeal to the Supreme Court is to proceed.
The shifting official treatment of Padilla was the basis of the government’s contention earlier that his appeal to the Supreme Court is now moot, and should be denied. In Wednesday’s application, the government said that, regardless of the outcome of that appeal, “the Court should make clear as expeditiously as possible” that nothing in federal law “prevents the military from executing the President’s [transfer] order, releasing Padilla from military custody, and transferring him to civilian custody.”
The application accused the Fourth Circuit (in its recent opinion, written by a conservative judge, J. Michael Luttig, who until now had been an Administration favorite) of relying upon “an incomplete characterization of events and an unfounded and unwarranted attack on the exercise of Executive discretion.”
Technically, the Fourth Circuit had based its refusal to order Padilla’s transfer from a Navy brig in part on its understanding of a Supreme Court rule, Rule 36. That rule opens with this provision: “Pending review in this Court of a decision in a habeas corpus proceeding commenced before a court, Justice, or judge of the United States, the person having custody of the prisoner may not transfer custody to another person unless the transfer is authorized under this Rule.” It also provides for approval of a request for transfer on application.
The Justice Department, in asking the Fourth Circuit to approve the transfer of Padilla, told that court that “Rule 36 does not appear to apply in the extraordinary circumstances” of the presidential order to shift Padilla to civilian custody. The Fourth Circuit also expressed some doubt about applying Rule 36, but concluded that “to the extent our authorization is needed,” it was refusing the transfer. It did so, the Circuit Court majority said, because the government appeared to be trying to scuttle Padilla’s appeal to the Supreme Court, and because that appeal was sufficiently important to be resolved only by the Supreme Court.
Clement asked the Supreme Court to rule that Rule 36 does not apply to President Bush’s order for Padilla’s transfer. If such a “procedural rule” is applied to thwart the President’s transfer order, the new application said, that would stir “grave separation-of-powers concerns.” Clement added: “There is no basis to interpret Rule 36 to have such an extraordinary effect, and well settled principles of judicial restraint and constitutional avoidance counsel strongly against it.”
The application also asked the Court, if ti finds that Rule 36 does apply, to grant the transfer on its own.
The government repeated its argument that Padilla’s appeal to the Supreme Court is now moot, but said the determination of the transfer issue is independent of that question. No matter how the Court decides the mootness question, it said, “transfer is appropriate.” That would be true even if the Court were to agree to hear Padilla’s appeal, it added.
Responding to the Fourth Circuit’s rebuke of the government for supposedly trying to manipulate the courts in the Padilla case, the application said there was “nothing remotely sinister” about what it has done, and said “there is no basis for questioning the good faith of the government” in switching positions to get an indictment of Padilla.
But, even assuming it is true that its actions were designed to undercut Padilla’s appeal to the Court, the application said “there is no principle that prevents a party from forgoing Supreme Court review, or from taking steps that would eliminate either the alleged need or jurisdictional basis for this Court’s review.”
It said it was fully prepared to defend the September ruling by the Fourth Circuit upholding Padilla’s capture and detention, if the Supreme Court agrees to hear the case.
In the ordinary course of Supreme Court practice, Roberts or the full Court would not be expected to act on the government’s application until after it gets a response from Padilla’s legal defense team. Padilla’s lawyers expect to file a response by Friday afternoon.
