Comments on: Government seeks Padilla’s transfer

By: Stella

Stella — Fri, 30 Dec 2005 11:58:50 +0000

Kent states:
“The argument that this particular check (Rule 36) does not apply to this particular executive power (release of a prisoner from military custody) is not inconsistent with Youngstown”

but, Youngstown gives us;
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are.

nuances aside, and given the Administrations penchant for claiming executive privilege, I still think Youngstown is relevant here. The Padilla case seems to fall into the second test of Youngstown and is therefore ripe for the SC.

By: George Gregg

George Gregg — Fri, 30 Dec 2005 03:23:45 +0000

Please forgive my ignorance, as I'm not a formally trained lawyer (yet, anyway). But isn't this a classic case of an exception to the mootness doctrine based on "capable of repetition yet evading review"?

If this is the case, then surely the case is not moot, but justiciable, right?

And given the plethora of current controversies related to Executive plenary powers in wartime, why in the world would SCOTUS NOT want to review this now? It would seem an abdication of their responsibility to not address this issue clearly and definitively, given the significnt upheaval on these Article II issues.

This is not to speak of the transfer of custody, per se. But unless I'm missing something (quite possible) it does seem clear that, given the above, there is a live, reviewable controversy on habeas corpus before the SCOTUS.

The Executive may not like it. But, you know, if it's the law...

By: Mary

Mary — Fri, 30 Dec 2005 00:35:21 +0000

Orin Kerr, Thank Goodness Volokh is back online. I was hoping not to learn the WH would stoop so low. Of course we all know the Patriot Act would have prohibited Volokh from confirming if the Feds shut down the Volokh. Regarding your conclusion “No conspiracy other than the Volokh one,” your own bloggers recognized none of the cases in which Americans suspect they have been subject to illegal domestic surveillance have made it to the discovery phase. Indeed, this was one of the biggest problems in the Judi Bari/Earth First!/FBI bomb planting case.

By: Kent Scheidegger

Kent Scheidegger — Thu, 29 Dec 2005 20:42:31 +0000

Stella asks, “Isn’t the argument that there is no applicability to a check on executive power in direct contrast to Youngstown?”

The argument that this particular check (Rule 36) does not apply to this particular executive power (release of a prisoner from military custody) is not inconsistent with Youngstown.

By: Stella

Stella — Thu, 29 Dec 2005 19:36:11 +0000

Pete
Gotcha! I remember that part now. Padilla I spoke of a ROTC case and I think Clement covered it there. But, if they transfer Padilla out of military custody and into the civilian system, won’t that complicate the habeas claim even further? The CW says Padilla will be transferred, but still see his habeas claim before the SC. How will Clement play the venue card in Padilla II?

By: petelush

petelush — Thu, 29 Dec 2005 15:06:14 +0000

Stella #2: My bad! Padilla court does use language of jurisdiction because it’s a q of physical location of custodian; I was wrong to write of “venue”. But the point remains: where a habeas must be brought is an issue not related to the new question of change from DoD to DoJ custody; really apples and oranges, and had I my orange juice before posting I would’ve been awake.

By: petelush

petelush — Thu, 29 Dec 2005 14:57:47 +0000

Stella: in the first Padilla Sup Ct appeal the US argued improper venue, not improper jurisdiction, as you seem to recognize. There is no inconsistency with that position and the claim now that the Gov can transfer Padilla from Dod to DoJ. There’s really no similarity, but to be precise: case 1, venue, was what USDC district must the habeas be brought in (namely, location of the custodian). case 2, please let us transfer him out of enemy combatant status to criminal defendant status, with concommitant change of custody, has to do not with a ‘case’ but with bringing a new case brought by a different part of the Executive Branch. (What happens to the old ‘case’, the enemy combatant status, is anybody’s guess…I wouldn’t even be sure that it is a ‘case’.”

By: Stella

Stella — Thu, 29 Dec 2005 12:01:18 +0000

Richard and Kent.

Regarding transfer of custody, the irony does not escape me that the 1st time Padilla went to SCOTUS, Clement argued the case that defense was erroneous on jurisdiction. Am I misinterpreting this? Clement argued that Padilla’s case couldn’t be tranferred across venues, but Padilla himself can? Won’t this transplant the case to a different jurisdiction, precisely what Clement argued against in the first case?

On the issue of Rule 36, it seems the Administration is reaching on its powers under the Commander in Chief role. Echoing the sentiment with the FISA courts, the Administration is arguing that Rule 36 does not apply and that the courts have “no basis for questioning” the Administration.

Isn’t the argument that there is no applicability to a check on executive power in direct contrast to Youngstown?

By: RufusLeeKing

RufusLeeKing — Thu, 29 Dec 2005 08:02:45 +0000

Hell hath no fury like a Supreme Court frontrunner spurned.

By: Orin Kerr

Orin Kerr — Thu, 29 Dec 2005 03:59:54 +0000

I don’t know why the VC is down, but I contacted the admin guy and he tells me it should be back up in a few hours. No conspiracy other than the Volokh one, I think.