Fourth Circuit keeps Padilla case alive, rebukes government
In a deeply serious setback for the Bush Administration’s legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government’s credibility in claiming a dire need to designate Padilla as an “enemy combatant” and thus to confine him — for more than three years now — in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts.
The language used in the opinion — reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged — could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush’s war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody — a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla’s appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review of the Fourth Circuit’s Sept. 9 ruling.
Judge Luttig, writing for a three-judge Fourth Circuit panel, said “we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.”
In addition, Luttig said: “We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review.” Thus, he said, “we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision].”
If the normal path for “this significant litigation to conclusion” is to be stopped “at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States,” the panel opinion said.
The Administration last week asked the Supreme Court to deny review of the case, saying it was now moot because Padilla had been charged with a crime in civilian court, and thus there was no longer a legal basis for keeping him in military custody as an “enemy combatant.” That maneuver followed the government request to the Fourth Circuit to clear the transfer of Padilla to a federal prison in Miami, so he could be tried on the new charges.
But, with Wednesday’s action by the Fourth Circuit, the government is left in a position to either let the case go forward without change in the Supreme Court, or else try to persuade the Court to act on its own to order Padilla’s transfer to civilian custody and to vacate the Fourth Circuit opinion of Sept. 9. The Justice Department said in a statement by press officer Tasia Scolinos that it was considering its options. It did not react to the tone of the Circuit Court ruling, but did remark that presidential authority to detain terrorist suspects “should not be viewed as an obstacle to an exercise of the government’s undoubted authority to prosecute federal crimes, including those related to terrorism.”
There was no mistaking the pique of the Fourth Circuit at the government’s maneuvering in that court, and in its series of switched positions on Padilla.
Judge Luttig said the panel “cannot help but believe” that the government had underestimated the consequences of its differing treatment of Padilla in recent weeks. Those consequences, his opinion said, bear upon “the public perception of the war on terror” and on “the government’s credibility before the courts in litigation ancillary to that war.” Luttig conceded that the government perhaps had “carefully considered” those consequences “because of their evident gravity.” But it was plain that the judges did not believe that was true.
The government’s actions, the opinion said, “have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extant.”
Moreover, Luttig wrote, those actions “have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expedience with little or not cost to its conduct of the war against terror — an impression we would have thought the government likewise could ill afford to leave extant.”
“These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”
The Fourth Circuit, in its Sept. 9 ruling now under challenge in the Supreme Court, had given the government a sweeping victory, broadly upholding presidential power to seize U.S. citizens on American soil, and designate them as “enemy combatants,” thus subjecting them to prolonged detention without legal rights.
Wednesday’s opinion made it appear that the Circuit panel thought it had been misled by the government in presenting that issue for decision in the case of an individual once — but no longer — said to be a threat to violent acts inside the U.S.
“The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held,” the panel recalled. But, soon after the panel had ruled, “the government determined that it was no longer necessary that Padilla be held militarily.” That came with the announcement of the criminal indictment in Florida, mentioning none of the acts that formed the basis for the government’s claim to detain Padilla in a military jail.
As the opinion recounted the specifics of the government’s changed view toward Padilla, and its resulting shifts in legal maneuvers, the panel used descriptions that were saturated with implied skepticism.
The actual ruling itself came in two parts, producing a slightly different vote among the three judges.
On the government request to immediately allow Padilla’s transfer out of military custody, Luttig, joined by Circuit Judge M. Blane Michael, denied that request, remarking again that the government’s actions had created the appearance that its purpose “may be to avoid consideration of our decision by the Supreme Court.” The judges said they could not evaluate that impression, since the government had given the court no explanations for its shifting positions. It cited various media accounts anonymously quoting government officials as to why those shifts were made, and commented tartly: “The information that the government would provide to the media with respect to facts relevant to a pending litigation, it should be prepared to provide to the court.”
If the government were concerned about losing in the Supreme Court, the tactic must be seen as a deliberate attempt to avoid review at that level. It is not up to the government, the panel said, to decide by which judicial forum it would be bound.
If the government were concerned that it could not bring criminal charges for the kind of conduct that led to the “combatant” designation because that evidence may have been coerced from Padilla, that is irrelevant to the case now in the Supreme Court, the panel said. The government, it said, could have put that concern before a court further examining the basis for Padilla’s “combatant” status.
The goverment, those two judges said, might have legitimate reasons for what it has done recently about Padilla. But the government, they repeated, has given no explanation.
Circuit Judge William B. Traxler, Jr., apparently did not join in the ruling against Padilla’s transfer out of military custody. He did say, though, that he agreed “that we should not vacate our earlier opinion.” It was unclear whether he shared the specific complaints registered by the Luttig opinion, since he was noted only as “concurring in part.”
Judge Traxler did join his colleagues in refusing to wipe out the Sept. 9 decision. Thus, he presumably joined in the opinion’s harsh rationale for preserving that ruling as is, while the Supreme Court considers it.
In explaining the refusal to vacate that opinion, Luttig’s opinion suggested that the administration for four years had made “a centerpiece” in the war on terrorism a claim of presidential power to detain militarily persons believed to be terrorists. The Circuit Court itself, Luttig noted, had recognized the “exceeding importance” of that question.
On an issue of that magnitude, the opinion said, “we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court.”
One can’t help but wonder whether Judge Luttig just took himself off the short list for future Bush Supreme Court nominations.
Comment by KipEsquire — December 21, 2005 @ 5:01 pm
The irony of the ruling is that it is phrased, consistent with the underlying 4th Circuit Court of Appeals opinion in the case, as a pro-authoritarian, rather than as a pro-civil liberties ruling. No mention is made of Padilla’s personal desire for greater liberty. The 4th Circuit is basically asking the government to stick to its guns and defend the policy that they upheld for it (something that another U.S. Circuit Court of Appeals in the first habeas petition which was vacated on jurisdictional grounds, and the trial judge in this case, declined to do).
Comment by ohwilleke — December 21, 2005 @ 5:15 pm
Is Luttig’s professed ignorance of the rationale and scope of Supreme Court Rule 36 to be believed? I thought it was fairly common knowledge that the purpose was to keep the habeas applicant within reach of the process of the court. There was a book not that long ago about a famous Tennessee case where the sheriff allowed a prisoner, whose execution had been postponed by the Supreme Court while his case was decided, was handed over to a lynch mob. The sheriff was then tried for contempt of the Supreme Court. The point being, while Luttig is undoubtedly pissed (pass me over once, it’s my fault; pass me over twice, it won’t be passover again), the decision, like the resignation of Robertson from the FISA court, is more evidence that the legal establishment is jettisoning this administration.
Comment by r.friedman — December 21, 2005 @ 5:52 pm
I’m going to have to agree in part with “Oh”.
The opinion preserves, rather than vacates, the 4th Circuit opinion. If the administration can cobble together a worthwhile argument, then it goes up to the Supreme Court WITH that precedent.
Is the precedent weakened? No, not if the administration can pivot and say, “Okay, uphold Padilla, and here’s why — look at all these good rationales that justified the Padilla opinion.” And when SCOTUS starts scrutinizing the facts, the answer is easy, SCOTUS isn’t a trial court. It takes the facts as they were presented below.
Listen, if SCOTUS agrees with Luttig, then Padilla stays in military custody and the precedent is affirmed by SCOTUS. If they disagree and vacate the ruling, then why did they take the case or why would they avoid transferring Padilla to civilian custody?
It seems like either way the administration gets what it wants.
Comment by Commentator — December 21, 2005 @ 6:16 pm
While the court’s annoyance is understandable and while the transfer question does come within the literal language of Rule 36, forcing a custodian to maintain disputed custody when she no longer wants to hold the prisoner, but another custodian does have a clearly legal basis for holding him, is not what Rule 36 is about.
Presumably, the transfer decision now goes to the Circuit Justice, who for the Fourth is the Chief Justice.
Comment by Kent Scheidegger — December 21, 2005 @ 6:30 pm
Kent & Lyle.
I’m lost on this one, guys. I don’t think I still understand what the previous assertation from the 4th Circuit meant. I don’t understand what the harm to presidentail power was. Isn’t the Hamdi decision precedence? Or, are we still in limbo? What’s moot here? What’s the argument going to be before the Roberts court? I think I missed something and am having trouble following this one. I understand that this is a huge blow the the Administration because it seems as if they think they might lose, which would have HUGE implications, but I think I’m missing some of the details.
Comment by Stella — December 22, 2005 @ 9:39 am
Stella,
This case certainly should be moot. When habeas corpus is used for its original purpose, as it is here, it is a dispute between the prisoner demanding to be released from a custody he claims is illegal and a custodian who intends to keep him in that custody. Here we have the very odd situation of a person kept in military custody over the military’s objection by order of the court that is adjudicating the legality of that custody.
The earlier Supreme Court decisions are, of course, precedent regardless of what happens here. The issue is whether the Fourth Circuit’s decision in Padilla will be wiped out by mootness, and the Supreme Court will not reach the merits for the same reason. I think so.
Comment by Kent Scheidegger — December 22, 2005 @ 11:08 am
A question for those far wiser than I:
I am intrigued from the comments and reports that seem to say the court shouldn’t be able to prevent the government’s action. Couldn’t this order constitute a writ necessary to protect its jurisdiction, per 28 USC 1651? Meaning, wouldn’t this court have the power to issue any necessary rulings to prevent a party from purposely circumventing the jurisdiction of the Article III courts?
Comment by Arlen Pruitt — December 22, 2005 @ 12:02 pm
Kent,
I think I get that point. What I don’t understand is the ramifications of the decision. What decision moot? I get that it’s the 4th Circuit’s, but what did that say? I’m still confused over last time Luttig handed down a decision on this one. What claims by the administration are in jeapardy here? The right to detain US citizens, or is it just a different matter because Padilla was detained on U.S. soil? I think I’m going to have to go back and listen to this one on Oyez. (sorry guys..I’m trying to learn)
Comment by Stella — December 22, 2005 @ 12:04 pm
Does anyone know what the Administration is thinking? Remember that Padilla’s petition was initially filed in NY - he won at the 2nd Cir, but the S Ct vacated on grounds of no jurisdiction. Then he refiled, lost in the D.Ct. and in the 4th Cir. So why was the Admin willing to go to the S Ct once but not twice? And why would they have persisted in the 4th Cir if they are so afraid of the Supremes? If they knew that they would have Alito not O’Connor would they have gone up?
Comment by JR — December 22, 2005 @ 1:32 pm
This opinion repeatedly notes that the Government gave no reason for its various motions, while the news alleged many nefarious reasons which were not disputed. The principle that the court should be presented with an explanation is new.
More so when there is an obivious explanation not cited by the newspapers or by the option. International law constrains the treatment of a POW by the Detaining Party. He may not be tried in civilian courts and presumably may not be compelled by them. As a soldier, he would be subject to the command of superior officers.
Even if Padilla was not tried himself, he obviously has information on the case. The Sixth Amdendment grants the other defendendents the right to subpoena his testimony, but the courts would have no power to enforce that subpoena as long as he remained an enemy combatant. The case was headed slowly down the track to an inevitable constitutional train wreck.
A POW has to be released at the end of the conflict, but he can be released at any time for medical or humanitarian reasons, or in exchange, or on parole. The President decided to release him, much as he might pardon a criminal. That may have had the effect of rendering the current litigation moot, but it was essential to make the pending criminal case proceed.
So the Administration could have given a perfectly sound legal explanation. It chose to say nothing at all. Luttig’s decision in this circumstance was entirely sound. Far from being put out of the running, I suspect it has put him at the top of the list for the next nomination. Now that his independence has been demonstrated, all the Administration’s critics that now praise him will have trouble claiming he is a flunky.
Comment by Howard Gilbert — December 22, 2005 @ 2:24 pm
The reason the 4th Circuit is balking and demanding an explanation is because it thinks that the adminstration lied to it in open court about its desire to hold Padilla as an enemy combatant and its bona fide belief that he was one. Its opinion points out that the only way that their representations could have been true is in the very unlikely event that they suddenly discovered in a very narrow time frame that he was not an enemy combatant after all and that they were mistaken.
Comment by ohwilleke — December 22, 2005 @ 2:57 pm
The 4th Circuit is also concerned that the Administration deliberately waited to spring Padilla from military detention until after the 4th Circuit ruled, thereby manipulating the judicial process. An earlier commentator here was wrong — Padilla WON on summary judgment in the district court, and the 4th Circuit reversed.
Comment by AppealMan — December 22, 2005 @ 9:27 pm
So why was the Admin willing to go to the S Ct once but not twice?
Because the 1st time they went, they hadn’t seen the Court’s opinions in Hamdi, including Scalia’s “originalist” argument that where a U.S. citizen is detained, he must be indicted or released (barring a suspension of habeas by
Congress, which Scalia refused to read into the AUMF).
That left a very strong possibility of 5 or 6 votes that the Administration cannot detain its citizens indefinitely as “enemy combatants.” Once they saw that, the writing was on the wall.
Comment by Anderson — December 23, 2005 @ 2:55 pm
Is it just me, or is the 4th Circuit in a way admitting it made a bad ruling in not demanding Padilla be indicted or released, saying “we screwed up that one, the SC is gonna overturn it, let them”?
I’m no scholar, it just sounds….odd to me.
Comment by b-psycho — December 24, 2005 @ 3:22 am