Court urged to deny Padilla appeal
on Dec 16, 2005 at 6:32 pm
The Bush Administration late Friday afternoon urged the Supreme Court to deny review of the challenge by Jose Padilla to his designation as an “enemy combatant” in the war on terrorism, arguing that the case is now moot. “The predicate for this habeas action…no longer exists” because Padilla has now been charged with crime in civilian court, and ordered released from military custody, the brief contended. (The text of the government’s 30-page brief can be found at the link provided in the post just below. The attempt by Padilla’s lawyers to keep the case alive through action in the Fourth Circuit is discussed in the post further below.)
The Court has not yet scheduled the Padilla case (docket 05-533) for consideration, but it is expected to go to a Conference session either on Jan. 6 or Jan. 13. Padilla will now have a chance to reply to the government’s move, and the Court will then have the case distributed to it for grant or denial or review, or other disposition.
The opposing brief by Solicitor General Paul D. Clement basically tracks the argument for mootness that the Court made a week ago in the Fourth Circuit — the court that issued the ruling Padilla is challenging before the Supreme Court. That ruling gave broad support to presidential wartime authority to order the capture and long-term detention of “enemy combatants.”
“The fact that the case is now moot itself calls for denial of certiorari,” the brief contended. “Indeed, that will be psarticularlyo clear if the court of appeals decides to vacate its opinion. But even if the case were not moot, certiorari wouldbe unwarranted at this juncture because the court of appeals’ decision is interlocutory, consistent with this Court’s decisions, and correct on the merits. In any event, the intervening events have, at a minimum, seriously undercut any basis for review in this case.”
Although the Fourth Circuit ruled against Padilla on the basic question of presidential power over “enemy combatants,” Padilla is continuing with a factual challenge in a U.S. District Court in South Carolina.
In opposing Supreme Court review, the government said Padilla’s original habeas challenge, the Fourth Circuit ruling against him, and his Supreme Court petition “are all addressed solely to the lawfulness” of his military detention as an enemy combatant.
Beyond the mootness contention, the brief said that review of the appeal should be denied because of “the prudential axiom that courts should avoid the resolution of sensitive constitutional issues.”
The appeal, it added, cannot be saved on a theory that the underlying controversy is capable of being repeated but might escape court review if so. Repeating its arguments on this point in the Fourth Circuit, the Justice Department brief said it is mere speculation that Padilla could ever again face designation as an “enemy combatant.”
