Comments on: Government willing to give up Padilla precedent

By: HowardGilbert

HowardGilbert — Sun, 11 Dec 2005 13:36:52 +0000

The DOJ says “upon petitioner’s release from military custody and transfer to the control of the Attorney General for criminal proceedings, the authority of the military to detain petitioner as an enemy combatant provided in the President’s June 9, 2002, order ’shall cease.’” The court could regard this as a release of Padilla from POW status. The Geneva convention then provides “Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment.” If Padilla is found innocent, however, then the necessary next step is “Release and Repatriation.” At that point Padilla is a civilian non-combatant (effectively an Al Qaeda “veteran”). He cannot be detained again unless he goes overseas again, actively rejoins Al Qaeda, and is then recaptured. Those are the only “speculative” circumstances in which these issues could return to the status of an active controversy for him. The government cannot simply “redesignate” Padilla as an enemy combatant, and the court should make this clear in its order.

By: Eric M. Freedman

Eric M. Freedman — Sat, 10 Dec 2005 18:35:34 +0000

Kent: See FRAP 23.

By: ohwilleke

ohwilleke — Sat, 10 Dec 2005 04:20:54 +0000

The arguement is that once a habeas corpus petition is commenced, an individual is under the jurisdiction of the court. Usually, the concern would be that the people under the jurisidiction of the court would be removed from its jurisdiction in an effort to thwart judicial review of the detention.

By: Kent Scheidegger

Kent Scheidegger — Sat, 10 Dec 2005 00:57:31 +0000

By what authority does the court require the government to keep Padilla in military custody until it gives permission for the transfer? Habeas corpus may authorize a court to require the military to justify keeping a person in custody, but I had not previously heard of a court claiming the authority to require the military to justify a release.

By: Richard Samp

Richard Samp — Fri, 09 Dec 2005 20:39:53 +0000

Although, as Lyle suggests, the district court is unlikely to have an opportunity to address what procedures are applicable to a fact-based challenge to an enemy combatant designation, that issue is currently in front of another South Carolina federal district court. Al-Marri v. Rumsfeld involves a resident alien who was living in Illinois before President Bush designated him an enemy combatant. He is now being held in South Carolina. The parties are in the middle of briefing several procedurally-based issues, including whether Al-Marri bears the burden of coming forward with evidence to rebut allegations contained in the government’s affidavits.