Government seeks Padilla’s transfer
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.
They just don’t get it, do they? First they argue that the President can order Padilla held on his say-so.
Then they want to transfer him to DOJ custody and act like the last 3 years of incarceration never happened, no grandiose claims of Presidential powers.
*Now* they say that the President can order Padilla transferred however he wants, S. Ct. R. 36 be damned?
Brilliant move, guys.
Comment by Anderson — December 28, 2005 @ 4:55 pm
Speaking of the Government’s manipulation of Padilla, has anyone here tried to get on Volokhs Conspiracy blog today? Over there, several heated discussions were in progress on Hamdi, Padilla, the domestic surveillance, Supreme Court Dockets No. 05-7287 & 05-7771 (Day-Petrano), and The Vessel Mistress surveillance vessel. Now it appears Volokh may be offline. I tried to access that blog to check in on this important national topic on a number of different computers, including the one at the local Courthouse law library, and all that comes up is the web page cannot be displayed. Is anyone else having this problem? If so, I wonder of the Government has taken down Volokh. Anyone know anything? For those interested in the Government’s manipulation of Padilla, please note, my cases have been manipulated also. My cases arise in the civil rights context.
Comment by Mary — December 28, 2005 @ 5:33 pm
Leaving aside the somewhat incendiary language in both the 4th Circuit decision and the SG’s latest filing, none of this seems like a particularly big deal to me. The military probably doesn’t need anyone’s permission to transfer custody of Padilla to DOJ (particularly because Padilla doesn’t object to the transfer), but it is smart to ask permission before it acts, just in case. The 4th Circuit never said that Padilla couldn’t be transferred; it simply said that it would not add its imprimatur to what the government was attempting to do. I suspect that the Supreme Court will grant the transfer motion as a matter of course. At the same time, it will probably want to make clear that the fact of transfer has no bearing on the mootness issue. My own view is that the case clearly is not moot; and the only real issue is whether the Supreme Court wants to wade into the dispute, not whether it is jurisdictionally barred from doing so (based on the alleged absence of a case or controversy).
Comment by Richard Samp — December 28, 2005 @ 6:42 pm
I agree with Richard that the Supreme Court should and probably will approve the transfer, which is within the literal language of Rule 36 but not within its purpose or intent. I disagree on mootness, though. The end of military custody does moot the controversy. Carafas v. LaVallee, 391 U.S. 234 (1968) would have to be extended into new territory to avoid mootness, and I don’t think the Court is disposed to do so. This is one more instance where a dubious precedent need not be overruled, but should not be extended, even by a fraction of an inch.
Comment by Kent Scheidegger — December 28, 2005 @ 7:27 pm
Yes, I could not reach the volokh blog today. To conjecture that the government has taken it down is quite a stretch, in my opinion. As a life-long anti-conspiracist, even I would have to call for an overthrow of the Administration for such an act, so I reject out of hand that the WH would contemplate such a thing. If I’m wrong, I’ll go to the impeachment barracades (I’ll be wearing a gray cap).
Comment by petelush — December 28, 2005 @ 7:51 pm
I wouldn’t be surprised to see the anti-Volokh conspiracy reported as fact in tomorrow’s newspaper, though. The papers were so easily snookered by the phony story about the kid supposedly harassed for checking out Mao’s little red book that anything is possible. If it fits the template, fact-checking is optional.
Comment by Kent Scheidegger — December 28, 2005 @ 7:58 pm
There are some interesting nuances here.
The Court does not need to address the motion at this time. If the Court does not review the motion at this time, then it will be hearing the case-in-chief and decide the motion at that time.
Does Roberts need to recuse himself?
If the Court entertains the motion, what happens then? Can the motion be considered without addressing the principal case? Can the pending case be dismissed, thereby ending jurisdiction? Would a dismissed cert give the Fourth Circuit another bite at the apple in the main case? Could the Fourth Circuit decide to withdraw its order and write a new one holding that Padilla is not an enemy combatant?
Everyone seems to think that the Supreme Court does not want to hear this one. It could well be that they are itching for a chance to decide a Presidential powers case.
Who says that there is a war going on? Does the Consitution allow the definition of war to be extended into this President’s concept of war (and the current Congressional view) in direct conflict with the definition when the Consitution and related amendments were drafted? Why would a strict constructionist Court not want to add that question to the issues in the Padilla case (if it is not already being briefed)?
Cliff Potter
Comment by Cliff Potter — December 28, 2005 @ 8:24 pm
Petelush, the last time I posted on Volokh was about 2 am EST this morning, when I stated I arrested a surveillance vessel for salvage in the Middle District of Florida. Petranos v. The Vessel Mistress, M.D. Fla. on PACER. The Vessel has been under arrest for a little over a year, and the only witness to testify for the defendant Vessel was a Coast Guard E-9 who admitted and confessed (and recognized by the district judge) to having committed perjury by lying about his licensing credentials. Just after my post Volokh went offline.
I also had posted about my father who was an architect of the electronic surveillance grid now part of ECHELON, when he worked for IBM and Bank of America.
I would reserve judgment on whether the Volokh issue is conjecture — maybe the WH can explain.
Comment by Mary — December 28, 2005 @ 10:40 pm
With the Padilla case, Bush’s defenders act like they are ordering one from column A, then one from column B. Principles seem secondary at best. In an odd twist, their means would justify the power.
Very impressive and apreciate analysis here. Thanks.
Comment by The Heretik — December 28, 2005 @ 10:42 pm
Petelush, I forgot to mention, two of the disability civil rights cases with retaliation nexus to the Vessel surveillance case are pending in SCOTUS, Dockets No. 05-7287 & 05-7771, and the surveillance Vessel case is imminently being filed on Petition in SCOTUS as well out of the 11th Circuit Court of Appeals. Significant intervening events occurred in the Dockted cases subsequent to filing the initial Petitions. So, you see, Hamdi and Padilla are not the only cases pending in SCOTUS on the domestic surveillance issues.
Comment by Mary — December 28, 2005 @ 11:04 pm
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.
Comment by Orin Kerr — December 28, 2005 @ 11:59 pm
Hell hath no fury like a Supreme Court frontrunner spurned.
Comment by RufusLeeKing — December 29, 2005 @ 4:02 am
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?
Comment by Stella — December 29, 2005 @ 8:01 am
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’.”
Comment by petelush — December 29, 2005 @ 10:57 am
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.
Comment by petelush — December 29, 2005 @ 11:06 am
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?
Comment by Stella — December 29, 2005 @ 3:36 pm
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.
Comment by Kent Scheidegger — December 29, 2005 @ 4:42 pm
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.
Comment by Mary — December 29, 2005 @ 8:35 pm
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…
Comment by George Gregg — December 29, 2005 @ 11:23 pm
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.
Comment by Stella — December 30, 2005 @ 7:58 am