Fourth Circuit keeps Padilla case alive, rebukes government
on Dec 21, 2005 at 4:19 pm
In a deeply serious setback for the Bush Administration’s legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government’s credibility in claiming a dire need to designate Padilla as an “enemy combatant” and thus to confine him — for more than three years now — in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts.
The language used in the opinion — reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged — could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush’s war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody — a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla’s appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review of the Fourth Circuit’s Sept. 9 ruling.
Judge Luttig, writing for a three-judge Fourth Circuit panel, said “we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.”
In addition, Luttig said: “We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review.” Thus, he said, “we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision].”
If the normal path for “this significant litigation to conclusion” is to be stopped “at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States,” the panel opinion said.
The Administration last week asked the Supreme Court to deny review of the case, saying it was now moot because Padilla had been charged with a crime in civilian court, and thus there was no longer a legal basis for keeping him in military custody as an “enemy combatant.” That maneuver followed the government request to the Fourth Circuit to clear the transfer of Padilla to a federal prison in Miami, so he could be tried on the new charges.
But, with Wednesday’s action by the Fourth Circuit, the government is left in a position to either let the case go forward without change in the Supreme Court, or else try to persuade the Court to act on its own to order Padilla’s transfer to civilian custody and to vacate the Fourth Circuit opinion of Sept. 9. The Justice Department said in a statement by press officer Tasia Scolinos that it was considering its options. It did not react to the tone of the Circuit Court ruling, but did remark that presidential authority to detain terrorist suspects “should not be viewed as an obstacle to an exercise of the government’s undoubted authority to prosecute federal crimes, including those related to terrorism.”
There was no mistaking the pique of the Fourth Circuit at the government’s maneuvering in that court, and in its series of switched positions on Padilla.
Judge Luttig said the panel “cannot help but believe” that the government had underestimated the consequences of its differing treatment of Padilla in recent weeks. Those consequences, his opinion said, bear upon “the public perception of the war on terror” and on “the government’s credibility before the courts in litigation ancillary to that war.” Luttig conceded that the government perhaps had “carefully considered” those consequences “because of their evident gravity.” But it was plain that the judges did not believe that was true.
The government’s actions, the opinion said, “have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extant.”
Moreover, Luttig wrote, those actions “have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expedience with little or not cost to its conduct of the war against terror — an impression we would have thought the government likewise could ill afford to leave extant.”
“These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”
The Fourth Circuit, in its Sept. 9 ruling now under challenge in the Supreme Court, had given the government a sweeping victory, broadly upholding presidential power to seize U.S. citizens on American soil, and designate them as “enemy combatants,” thus subjecting them to prolonged detention without legal rights.
Wednesday’s opinion made it appear that the Circuit panel thought it had been misled by the government in presenting that issue for decision in the case of an individual once — but no longer — said to be a threat to violent acts inside the U.S.
“The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held,” the panel recalled. But, soon after the panel had ruled, “the government determined that it was no longer necessary that Padilla be held militarily.” That came with the announcement of the criminal indictment in Florida, mentioning none of the acts that formed the basis for the government’s claim to detain Padilla in a military jail.
As the opinion recounted the specifics of the government’s changed view toward Padilla, and its resulting shifts in legal maneuvers, the panel used descriptions that were saturated with implied skepticism.
The actual ruling itself came in two parts, producing a slightly different vote among the three judges.
On the government request to immediately allow Padilla’s transfer out of military custody, Luttig, joined by Circuit Judge M. Blane Michael, denied that request, remarking again that the government’s actions had created the appearance that its purpose “may be to avoid consideration of our decision by the Supreme Court.” The judges said they could not evaluate that impression, since the government had given the court no explanations for its shifting positions. It cited various media accounts anonymously quoting government officials as to why those shifts were made, and commented tartly: “The information that the government would provide to the media with respect to facts relevant to a pending litigation, it should be prepared to provide to the court.”
If the government were concerned about losing in the Supreme Court, the tactic must be seen as a deliberate attempt to avoid review at that level. It is not up to the government, the panel said, to decide by which judicial forum it would be bound.
If the government were concerned that it could not bring criminal charges for the kind of conduct that led to the “combatant” designation because that evidence may have been coerced from Padilla, that is irrelevant to the case now in the Supreme Court, the panel said. The government, it said, could have put that concern before a court further examining the basis for Padilla’s “combatant” status.
The goverment, those two judges said, might have legitimate reasons for what it has done recently about Padilla. But the government, they repeated, has given no explanation.
Circuit Judge William B. Traxler, Jr., apparently did not join in the ruling against Padilla’s transfer out of military custody. He did say, though, that he agreed “that we should not vacate our earlier opinion.” It was unclear whether he shared the specific complaints registered by the Luttig opinion, since he was noted only as “concurring in part.”
Judge Traxler did join his colleagues in refusing to wipe out the Sept. 9 decision. Thus, he presumably joined in the opinion’s harsh rationale for preserving that ruling as is, while the Supreme Court considers it.
In explaining the refusal to vacate that opinion, Luttig’s opinion suggested that the administration for four years had made “a centerpiece” in the war on terrorism a claim of presidential power to detain militarily persons believed to be terrorists. The Circuit Court itself, Luttig noted, had recognized the “exceeding importance” of that question.
On an issue of that magnitude, the opinion said, “we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court.”