Government rebuffed on Padilla
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 It also announced then that President Bush had “superseded” his order to designate Padilla an enemy combatant and to hold him indefinitely in military custody.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.
Any hope that the precedent could be preserved despite mootness would seem to be naive. Normal practice is to vacate the lower court decision and remand with directions to dismiss, eliminating the precedent. See Stern, Supreme Court Practice, 832.
Comment by Kent Scheidegger — November 30, 2005 @ 4:55 pm
“Any hope”? I bet you 5 bazillion-gazillion moneny signs that the Fourth Circuit is just offering the government a chance to argue against vacatur in the Fourth Circuit, a friendly forum, before going to SCOTUS, rather than arguing it after a loss at SCOTUS — which would be impossible, no? That way, the appeal to SCOTUS over the decision to vacate would not deal with the substance of the case, but with the dry procedural issue of whether the decision should be vacated. If it isn’t, then the Fourth Circuit opinion acquires super-precedent status. This is a shell game to turn the pro-Executive Fourth Circuit opinion into cement. It’s a win for the Executive, because it effectively acts as a stay on SCOTUS rendering a decision. Or am I missing something here?
Comment by Commentator — November 30, 2005 @ 5:30 pm
Oh, and it is possible the Court DIGs the Padilla merits appeal.
Comment by Commentator — November 30, 2005 @ 5:32 pm
The title of this post should be “Government gets chance to preview its case and acquire another precedent on the way to SCOTUS.”
Comment by Commentator — November 30, 2005 @ 5:35 pm
If the 4th Circuit had done nothing, it would certainly have been entirely possible for the U.S. Supreme Court to have taken the case as a matter which is likely to recur but escape review. Roe v. Wade, among other well known cases, was decided on that basis.
What commentator is missing is the language “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.” in the court’s question posed to the parties, which could easily have been omitted.
I suspect that what irks the 4th Circuit panel is that they were told that the President believed that Padilla was a dangerous man, ready to return to battle, who could not be returned to the criminal justice system, when, in fact, it is clear that the President believed no such thing at the time that the case was argued before it, given the indictment. From their point of view this is a case of dishonesty towards a tribunal and that doesn’t make any judge happy.
Comment by ohwilleke — November 30, 2005 @ 5:40 pm
There were never “more serious charges.” Padilla was being held as an enemy combatant (a POW). We assume an enemy soldier has killed people and intends to kill more people — in combat. Sometimes combat extends to strategic targets, like buildings in cities. Over the last 65 years US forces, mostly bomber crews, have been captured after dropping loads of bombs on German, Japanese, Korean, and North Vietnamese targets. We made it clear that we would hold other governments accountable if they put any captured airmen on trial. Therefore, we cannot criminally charge an enemy soldier for whatever he did or intented to do. It is not just that Padilla cannot be charged for his mission, where he intended to blow up three apartment buildings using natural gas. If he actually blew up the buildings, and was captured on the scene holding the detonator, he could not be prosecuted for any crime provided that he was wearing a military uniform when captured and gave his name, rank, and serial number. Of course Padilla was captured out of uniform, but US forces captured him because they had his military records and knew he was a soldier before he stepped off the plane.
He is currently charged with a crime that he committed as a civilan before he enlisted in Afghanistan.
There is no precedent in international law for a POW to be transferred to a civilian court to stand trial for a crime he committed before going overseas and joining a foreign army. In international law a POW can only be held in military custody in a POW facility until he is repatriated, exchanged (for one of our soldiers), or paroled (release on his word of honor not to fight any more in this war). The Geneva Convention explicitly prohibits trial by a civilian court. Padilla is a Spy, and therefore is not entitled to its full protect, but there is no example of a Spy being tried except in a military court.
Under international law, the Fourth Circuit would be committing a War Crime if they transferred a POW to a civilian court. They cannot approve the transfer until they vacate their previous ruling that Padilla is, or ever was, an enemy combatant. The problem here is that even if they vacate their ruling that he is an enemy combatant, that is not quite the same thing as finding that, as a matter of law, he definately isn’t a POW. Unlike most legal issues, this cannot simply be settled by the agreement of Padilla’s lawyer. Geneva protections cannot be waived (to prevent an enemy torturing a POW to get him to sign such a document). The Fourth Circuit should also request submissions from the JAGs of the armed forces, and maybe from the ICRC.
Comment by HowardGilbert — November 30, 2005 @ 5:47 pm
Once the government decided to un-designate Padilla as an enemy combatant, the grant of the cert. petition became a longshot. Even if Padilla is technically correct that the case is not moot (because any alleged mootness was brought about by the government’s voluntary actions), it is hard to believe that the Court would want to expend its limited resources on an issue that is largely hypothetical — there are no Americans being held right now as enemy combatants, and there is no prospect that any Americans will be so designated any time soon. But if the 4th Circuit were to vacate its decision (along with the district court’s decision), then that would ensure that the petition would be denied. Not only would the dispute be hypothetical, but there would be no decision for the Supreme Court to review. I suppose the Court at that point could assert original jurisdiction over the “controversy,” but I would be shocked if that happened.
Marty L. responds: Richard, “Once the government decided to un-designate Padilla as an enemy combatant, . . . “?
Since when have they so “undesignated” him? Did I miss something? As far as I know, the government’s official position is that he’s *still* an enemy combatant, subject to indefinite detention — you know, to keep him from returning to fight in Afghanistan, per Luttig, J. — even if he’s acquitted in Florida.
Comment by Richard Samp — November 30, 2005 @ 6:43 pm
What is so unusual about a citizen being tried for espionage (i.e. for being a spy) in a civilian court? It happens all the time.
There are also definitely reasons the U.S. Supreme Court might want to review, as the validity of the enemy combatant policy has broad impact in plea negotiations and most notably in the al-Marri case (where an individual who was lawfully in the U.S. is being held as an enemy combatant in the same brig where Padilla was held).
Comment by ohwilleke — November 30, 2005 @ 7:12 pm
There are spies and there are Spies. James Bond works for MI6, a civilian spy organization. If he is caught, he is guilty of a espionage, a civilain crime. Padilla is a Military Spy. For example, Captain Nathan Hale was an officer who, in civilian clothes, crossed British lines of defense to gather intelligence. When captured, he was tried by a military court and hung.
In 1942 six German saboteurs were similarly tried by a military court and executed, but their trial was reviewed by the Supreme Court. The Quirin decision enumerates the requirements of military spy subject to military justice.
All the Quirin elements are present, so Padilla could be charged with violation of the Laws of War, tried by Court Martial, and hung.
Except that KSM is central to this charge, and he is in such a deep dark black CIA hole that there is little chance they will bring him back just to Court Martial Padilla.
Comment by HowardGilbert — November 30, 2005 @ 7:51 pm
Richard Samp: Once the government decided to un-designate Padilla as an enemy combatant, the grant of the cert. petition became a longshot.
What if the Fourth Circuit did not think so? Or did not want to take that chance?
Richard Samp: Even if Padilla is technically correct that the case is not moot (because any alleged mootness was brought about by the government’s voluntary actions),
Let us grant that he is correct.
Richard Samp: it is hard to believe that the Court would want to expend its limited resources on an issue that is largely hypothetical — there are no Americans being held right now as enemy combatants, and there is no prospect that any Americans will be so designated any time soon.
That depends on the precedents in place for the Executive to avail itself of, no?
Richard Samp: But if the 4th Circuit were to vacate its decision (along with the district court’s decision), then that would ensure that the petition would be denied.
In which case the government gets a do-over if another Padilla comes along. If the government wins, i.e., the 4th Circuit does not vacate its decision, then the decision is a super-precedent and the gov’t goes up with many of its newly minted arguments previewed.
Not only would the dispute be hypothetical, but there would be no decision for the Supreme Court to review. I suppose the Court at that point could assert original jurisdiction over the “controversy,” but I would be shocked if that happened.
That only happens IF the 4th Circuit vacates. It only does that if the government’s argument is trash. Richard, have faith in Saint Clement.
Comment by Commentator — November 30, 2005 @ 9:00 pm
I’m rather amused by some of the conspiracy theories noted by the above commentators. Do you know of whom you speak? Far from being a government “hatchet man,” Judge Luttig is a fine judge who takes the judicial process very seriously. He (and the rest of the panel) seems very concerned that the Department of Justice abused the judicial process in Padilla’s case. And as Jack Balkin noted in this post, that’s a reasonable assumption.
I suspect that DOJ higher-ups are very nervous. They risk not just losing favorable predenct; they also risk losing the respect of a judge (and federal court) ordinarily sympathethic to the government’s arguments.
No judge wants to feel used by federal prosecutors. And judges like Luttig – mindful of separation of powers – are especially sensitive to this. This will be interesting to watch.
Comment by Mike — November 30, 2005 @ 9:06 pm
In response to Marty’s comments: it’s true that the government has not in any way backed away from its claim that Padilla fought for al Qaeda and the Taliban in Afghanistan (and thus is subject to detention as an enemy combatant). But, for purposes of assessing the likelihood of a Supreme Court cert. grant, the important point is that the government is transfering Padilla out of military custody and into the criminal justice system. Thus, while the government is not precluded at some future point from re-asserting military custody over Padilla (e.g., if he is acquitted), my understanding is that the only current ground that the government is asserting for detaining Padilla is his criminal indictment. I assume that one of the first things Padilla’s attorneys will do when they get to court in Florida is to ask for a bail hearing; and while the government undoubtedly will oppose bail on grounds of dangerousness, I doubt that the government will contest the district judge’s authority to order release on bail.
Under those circumstances, and given that the Supreme Court has very recently addressed the detention-of-American-enemy-combatants issue under a relatively similar set of facts, I think it is fair to call the Padilla cert petition a “longshot.” And the purpose of my original post was to suggest that it would become an even longer shot if the Fourth Circuit vacates its decision.
Comment by Richard Samp — December 1, 2005 @ 12:07 pm
Commentator, when you turn bold face on, would you please remember to turn it back off? Thanks.
Comment by Kent Scheidegger — December 1, 2005 @ 3:24 pm
The argument that Padilla was a military spy is pretty weak. For this to be true he must, as Howard Gilbert notes “First, there has to be a war. Then the spy has to be the direct agent of an enemy military command.”
The only war going on was a war between two factions in an Afghan civil war to which the United States was not a party until far later, and al-Queda was not a party to that war, the Taliban was. The Afghan civil war, by the way, is either over, or very nearly over. The country has a legitimate government, a new constitution, and one more election before its electoral ranks are filled, due in a month or two. The U.S. was a late ally of the Northern Alliance in that battle which tipped the balance against the Taliban. And, Padilla is not alleged to have encountered U.S. forces in his flight from that war.
9-11 was a terrorist attack by a group of people not affiliated with any government, not a war, any more than the Oklahoma City bombing, the previous World Trade Center bombing, the Millenieum plot, various ELF arsons, or other terrorist attacks prosecuted in the civilian courts were wars.
Al-Queda is not a military force. It is not an agent of any sovereign government, nor of any group seeking to become a sovereign government. Padilla was in civilian clothes because he had no military rank, no military commission, no military title, and certainly would not have understood himself to be a member of any military force any more than he was when he was a gang member in Chicago. He was a civilian. A civilian who may have been interested in doing illegal and murderous things perhaps, but a civilian citizen of the United States. Indeed, James Bond, who held a commission in the British military before becoming an MI6 agent in the famous series of stories and movies, carried arms illegal abroad, and was acting at the direction of a foreign government is far closer to the definition of a military spy than Padilla. (But, he was white and had a British accent and that appears to make up for a multitude of sins). And, taking Gilbert’s argument at face value, all Padilla would have to do to be a civilian spy triable in civilan courts, rather than a courts-marital, would be to sign up with the al-Queda equivalent of the CIA instead of the DIA, which seems an odd basis for making a distinction in someone’s rights, beside the fact that it is an angels on pinhead question that attempts to fit square pegs into round holes.
The German sabatouers in WWII arrived via a U-Boat run by the Germany government at a time when the United States and the German government were in a declared war to a place he didn’t reside. Padilla arrived on a commercial airplane through commercial airports, without disguising his identity, on his own legitimate passport to his own hometown (and incidentally, did not, it turns out, have a dirty bomb plot in mind after all, as the DOD has acknowledged).
Comment by ohwilleke — December 1, 2005 @ 8:29 pm
Are we at war? On 9/18/01 Congress resolved “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” We know that KSM conceived, planned, and commanded the 9/11 attack. We know that he operated as part of Al Qaeda. We know that the Taliban harbored him and the rest of Al Qaeda. If you are looking for “persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks,” then you are talking about KSM.
The next terrorist attack planned by KSM was the “apartments operation” assigned to Padilla. So if you go back and rephrase the Congressional authorization, replacing names for people it only describes, then the President was authorized to use military force against Khalid Sheikh Mohammed for the purpose of preventing him from sending Jose Padilla to blow up buildings and kill more Americans. The last time America declared war on a person was Pancho Villa, and before that maybe collectively the Barbary Pirates.
In his declaration on Padilla, the President then talked about “Al Qaeda, an international terrorist organization with which the United States is at war.” So Congress used its War Powers, and the President used his authority under Foreign Affairs and Commander in Chief. There is no War Power in Article III.
Technically, Al Qaeda is a “waaf”. It is an Islamic charitable foundation established during the Afghan war with the Russian Army. So you are right that Al Qaeda is not a military force, but that is why it is better to talk about the military force or Mujahideen associated with Al Qaeda. In all the President’s declaration, Padilla is described as being “closely associated with Al Qaeda”.
Bin Laden formally declared war on the US twice. He did so according to Islamic tradition and Sharia law. Then the armed forces associated with Al Qaeda blew up some embassies, attacked the USS Cole, and proceeded to the 9/11 attack.
We are not at war with a country, but in Viet Nam we were nominally at war with an insurgency inside a country with a friendly government, and in Korea we fought 250,000 Chinese “volunteers” who claimed to be associated with neither China nor North Korea. This has become a rather routine thing.
If you are waiting for Bin Laden to put on a uniform and give himself a Western rank, it won’t happen. He follows the example of the Arab armies that swept across the world 1400 years ago. They didn’t wear uniforms or have ranks, so neither will he. So either we adapt to the situation that has been presented to us or we die.
Bin Laden doesn’t have submarines, so he sends his Special Operations forces by commercial plane. All of the 9/11 hijackers arrives by plane at airports just like Padilla. However, the mode of transport has nothing to do with military status. Thousands of US soldiers, sailors, airmen, and Marines take commercial planes every day, and none of them is discharged from the Military automatically because they stepped onto or off of a plane. If Padilla was a soldier when he stepped onto the plane in Pakistan, he was a soldier when he stepped off it in Chicago.
Comment by HowardGilbert — December 1, 2005 @ 10:13 pm
The law says “necessary and appropriate” force, not any force. And, who’s province is it to determine what the law is? The Article III judiciary’s province. Also, it is the province of the judiciary to decide what Congress meant in that declaration, and in the Hamdi and Rasul cases it made quite clear that the only war in this case that was legally relevant was the war in Afghanistan, not some ill defined “war against terrorism”.
Neither Pancho Villa nor the Barbary pirates were operating in places where the courts were functioning, the standard set after the Civil War, and unlike the WWII case, Congress had not provided for military tribunals, indeed, it had disavowed military treatment of Americans at home in the non-detention act.
Likewise, in Vietnam and Korea, there were civil wars underway by organizations seeking to be declared the legitimate regime. The Taliban did the same. Al-Queda doesn’t fit there.
Most legal scholars in 2000 would have argued that Quirin was an abberation in exceptional circumstances. Note that it predated, in particular, cases like Gideon and Miranda, which began to spell out the right to counsel and the nature of due process. Given the evolution of constitutional law in the past sixty years, Quirin, even to the extent that it remains good law, is hemmed in by the laws that have grown up around it.
One can be a soldier without a uniform, but Padilla was not a soldier. The mere fact that you declare war on someone does not make them a soldier in international law. If the Congress declared war on drug dealers, that would not make them amenable to courts martial and abroagate their constitutional due process rights. Likewise, declaring war on civilian terrorists does not make them soldiers.
Comment by ohwilleke — December 2, 2005 @ 3:32 am
ohwilleke: I suspect that what irks the 4th Circuit panel is that they were told that the President believed that Padilla was a dangerous man, ready to return to battle, who could not be returned to the criminal justice system, when, in fact, it is clear that the President believed no such thing at the time that the case was argued before it, given the indictment.
That is a rash conclusion which underscores the vital stake of this debate.
For the President to select certain criminal grounds for prosecution which are not in conflict with his combat strategies in play, should in no way be read as stating all his known facts on a given subject, such as citizen-enemy combatant Padilla, who may, at the executive’s discretion, be prosecuted for a crime and/or fought in combat pursuant to a war authorization.
To force the executive to maintain prosecutorial soundness in dealing with every aspect of an enemy combatant’s conduct by adhering to stringent criminal procedure and rights requirements would be ruinous to a Commander in Chief’s ability to wage war.
You have to allow the Commander to decide when such factors as a “ticking bomb” or need for secrecy as to techniques or informants may require that the expediencies of combat or interrogation be used that forgo preserving prosecutorially sound processes such as reading Miranda rights.
Comment by RufusLeeKing — December 2, 2005 @ 6:58 am
I think people are missing the consequences of the argument in terms of the original post and the degree to which the DOJ has screwed up. The President declared Padilla an enemy combatant and the Fourth Circut found that given the allegations of fact this was a postion supportable in law. That is a bell you can’t un-ring. The Fourth Circuit can vacate its previous order, but that doesn’t make Padilla a civilian again. The District Court said that Padilla had to be criminally charged or else released. That has to be overturned with an order precluding direct transfer of a POW to criminal court. Instead, There should be a short amount of time for the Government to repatriate Padilla to his choice of any country willing to accept him. After having fulfilled our obligations under international law to repatriate a POW, the government is then free to attempt to extradite him to face charges for a crime he allegedly committed before becoming an enemy combatant. He would not be able to return to the US without facing the pending criminal charges, or he could choose to waive repatriation and stay in the US to face charges. If he doesn’t feel like exile, he should be able to cut a nice deal in exchange for a guilty plea and some testimony. At this point the DOJ should be willing to accept anything just to clean up the mess it just made for itself.
Comment by HowardGilbert — December 2, 2005 @ 12:23 pm
Howard Gilbert: The President declared Padilla an enemy combatant and the Fourth Circut found that given the allegations of fact this was a postion supportable in law. That is a bell you can’t un-ring.
I see it as a decidedly unringable bell.
Congress authorized this war against those persons who harbored Al Qaeda, as Padilla is said to have done and was so ruled on in a habeas process. Congress can unauthorize that war. Or limit its scope to exclude those who it perceives are being wrongly dealth with as war enemies.
The judiciary can also unring the bell in each single case it is applied. The Hamdi habeas hearing is there as oversight against mistake or abuse in its application.
It is a bell that may be unrung by any branch of government for any perceived abuses.
Comment by RufusLeeKing — December 3, 2005 @ 6:17 pm
Padilla is indubitably a citizen of the United States. If he has a right to be repatriated, it is a right to be repatriated here.
Comment by ohwilleke — December 5, 2005 @ 7:52 pm