DOJ’s Motion for Stay in Padilla, Con’t
on Mar 14, 2005 at 10:54 pm
Lyle’s post, below, piqued my curiosity about what specific harm the Government claims it would suffer if the district court’s order in Padilla is not stayed pending appeal. Somewhat surprisingly, it turns out that the Government’s motion doesn’t contain much beyond the rhetorical flourishes that Lyle quotes.
The Government makes much of the fact (p.6) that a stay will not harm Padilla because the Government can, even under the court’s order, continue to detain him in civilian custody. Well, perhaps that’s the case — assuming, of course, that the Government has grounds to detain him in civilian custody. But if the Government can (as it emphasizes) continue to detain Padilla, then why does it need a stay of the order? Indeed, the district court order even permits the Government to detain Padilla in military custody until April 14th, by which time the appellate process could be well along. So what’s the basis for the motion to stay?
DOJ offers only two grounds, both of them extremely dubious.
First, DOJ argues (p.5) that “Padilla’s military (as opposed to civilian) detention is ‘necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens'” (quoting the President’s order). This appears to be a claim that in civilian detention (but not in military detention), Padilla would somehow be able to aid al Qaeda. How’s that? No explanation for this strange assertion is forthcoming. In passing, the motion states (p.6) that “there are significant differences between military and civilian custody, especially from the government’s standpoint.” But the motion does not even identify what those differences are, let alone why they might justify a stay of the Government’s ability to detain Padilla in military (as opposed to civilian) custody after April 14th.
The second justification has nothing to do with Padilla himself — that is to say, it is not based on any harm that might come from transferring Padilla to civilian custody. Instead, the Government argues (pp. 5-6) that the district court’s order will, unless stayed, deal a grievous blow to the President’s power to exercise his Commander-in-Chief authority generally:
“By directing petitioner’s release from military custody on the theory that ‘this is a law enforcement matter, not a military matter’ (Op. 21-22), this Court not only overturned the President’s determination regarding petitioner, it also eliminated a critical aspect of the President’s Commander-in-Chief authority — the ability to order the military capture and detention of enemy combatants who enter the United States bent on attacking civilians and the homeland. . . . Moreover, the Court undermined that core Executive function at a time when the United States remains vulnerable to future attacks by al Qaeda terrorists. . . . The order, if not stayed, would preclude the President from exercising a power he believes to be necessary to prevent future terrorist attacks. In the event that the court of appeals or the Supreme Court vindicates the President’s authority and reverses this Court’s decision, any lapse in the President’s ability to exercise his constitutional authority would plainly amount to irreparable injury.”
As far as I can tell, this argument is frivolous. The injunction (see page 23 of Judge Floyd’s Memorandum Opinion and Order) protects only Padilla. It reads, in full: “Respondent is hereby directed to release Petitioner from his custody within forty-five (45) days of the entry of this Order. [FN: Of course, if appropriate, the Government can bring criminal charges against Petitioner or it can hold him as a material witness.]”
The order does not affect any real, asserted or imagined power of the President other than his authority to retain Padilla in military detention beyond April 14th. The order does not affect the President’s ability to act against, and to detain, any other person, in any area of the United States. It does not have stare decisis effect — even with respect to other judges in the U.S. District Court for the District of South Carolina. It will have no nonmutual collateral estoppel effect with respect to any other detainee. This is not some sort of “class action” habeas case. That is to say: The President’s ability to exercise his consttutional authority will not “lapse” at all as a result of this order — not even for a minute.
Or am I missing something? Is the action of one trial judge that merely “cast[s] a cloud” on the Executive’s assertion of almost unfettered constitutional detention authority, sufficient to demonstrate irreparable harm? Cf. Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J., concurring in judgment granting stay of state court order) (“casting a cloud upon what [George Bush] claims to be the legitimacy of his election” threatens “irreparable harm to petitioner Bush, and to the country”).
