Padilla seeks to keep appeal alive
on Dec 16, 2005 at 4:40 pm
Accusing the federal government of repeated attempts to evade court review of its handling of terrorism suspects and of engaging in “gamesmanship” with the courts, lawyers for Jose Padilla urged the Fourth Circuit on Friday to keep intact the ruling in his case in order to allow him to continue to pursue his appeal to the Supreme Court.
In a 40-page brief, Padilla’s defense team said the Fourth Circuit should order his immediate release from a military jail, transferring him to civilian jail, but should postpone any action on wiping out its Sept. 9 ruling until after the Supreme Court has decided for or against review of his appeal. (His Supreme Court appeal is Padilla v. Hanft, docket 05-533; the case in the Fourth Circuit is docket 05-6396). The new brief, with appendices, can be found here.
Although Padilla lost the case in the Fourth Circuit, in a ruling that upheld broad power for the President to order the capture and detention of a U.S. citizen suspected of terrorism, he probably needs to keep that decision on the books in order to have a firm basis for continuing his case in the Supreme Court.
“Padilla,” the new brief said, “believes the appropriate course of action is for this Court to order his immediate transfer to civilian custody, and to defer action on the question of whether to recall the mandate until after the Supreme Court disposes of his petition for certiorari, which is currently scheduled to be considered in early January….The most prudent course of action…is to respect the status quo during the pendency of the appeal before the Supreme Court.”
A week ago, the Justice Department suggested the Fourth Circuit could withdraw its ruling, arguing that it was now moot because Padilla has been charged with crimes in civilian court, and President Bush has ordered his release from military custody. The government, however, has not yet taken explicit steps to remove his designation as an “enemy combatant” — the basis for his seizure and long-term detention in the Navy brig in Charleston, S.C. The government’s Dec. 9 brief in the Fourth Circuit can be found here.
The Justice Department was due to file its response to Padilla in the Supreme Court later Friday. It has already said it will ask the Court to dismiss that appeal as moot.
Padilla’s attorneys, in their new plea to the Fourth Circuit, argued that a network of federal court rules seeks to ensure that “habeas petitions cannot be mooted merely because the federal government transfers a prisoner when a habeas petition is pending in the federal court system.”
Recalling the Sept. 9 mandate in his case, his lawyers contended, should be a last resort. “The Supreme Court is currently contemplating review of this case and, without the use of any extraordinary powers, can fully consider the effect of the changed circumstances on the legal issues at stake. Deference and comity to the Nation’s highest court should counsel this Court to hold its power ‘in reserve’ until the Supreme Court disposes of the petition for certiorari. Such a course of action would avoid the unnecessary exercise of a power that should be used only as a ‘last resort'”
If the Supreme Court does deny review of his appeal, his attorneys said, the Fourth Circuit should then recall its mandate and vacate its deicsion. “The government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions. Its egregious conduct unquestionably constitutes good cause to recall the mandate and vacate — or even reverse — the opinion. Absent vacatur or reversal, this Court’s opinion will stand in history not for its legal principles, but as a blow to the integrity of the judicial process and a mark of injustice.”
The brief is unsparing in its criticism of the Justice Department’s litigation strategy in war on terrorism cases in general, and in Padilla’s case in particular.
It argued: “For the fourth time in three years, the government has changed its story on Padilla. This Court’s decision that the President had authority to detain Padilla as an enemy combatant was permised on the third set of now-abandoned facdts, which the government now contends it will never have to prove or recant. Moreover, over the past three and a half years, the government has fought at every turn to avoid judicial review of its actions with respect to enemy combatants. In short,the government’s egregious conduct and gamesmanship in the federal courts justifies a recall of the mandate and vacatur of the September 9, 2005, decision.”
The brief argued that, while the factual allegations against Padilla “have changed with the prevailing winds, the government’s actions have been strategically consistent. At every turn, the government has sought to manipulate the federal courts’ jurisdiction and evade judicial review.”
This “pattern of manipulation,” the brief goes on, “extends beyond this case to the other cases involving ‘enemy combatants’ detained in the United States.” It then catalogues four other cases of what it calls moves to evade judicial review by changing its handling of enemy combatants’ cases shortly before a significant court event or challenge was to occur.
In Padilla’s case, his lawyers contended, the new indictment of him came only two days before its response brief was due in the Supreme Court. This, they said, “cannot be construed as coincidence….One can only assume that the government strategically chose to wait until after this Court had issued its ruling in its favor, but just before the Supreme Court would decide whether to review that ruling, to indict Padilla.” (emphasis in original).
The Fourth Circuit, the brief added, “must be careful not [to] allow itself to be manipulated to render advisory opinions in the government’s favor on hypothetical facts the government never intends to prove, particularly on novel constitutional issues of historic scope and importance.”
The conduct of the government, the lawyers said, might indicate that the Fourth Circuit would be justified if it were not just to vacate its opinion, but to reverse it on the merits. “Only then would the ‘loaded weapon’ now aimed at the courts and the citizenry be safetly stowed beyond the reach of the always grasping ‘hand of…authority.'”
Finally, the brief argued that the case is not moot, because the government had not given up a claim that it could return him to military detention as an enemy combatant “at any time and for any reasons.” President Bush’s official memo ordering Padilla to be turned over to civilian authorities “does not state that Padilla’s designation as an enemy combatant has been withdrawn….Even if acquitted of all criminal charges, he is a man who will be free only by what the government deems its grace, never free by right.”
The brief disclosed that, three days ago, Padilla’s lawyers asked the Justice Department — to no avail — to join in a consent decree in federal court “by which the government would agree never again to designated Jose Padilla as an ‘enemy combatant,’ or to detain him in military custody, on the basis of any actions that occurred or are alleged to have occurred at any time prior to the entering of the consent decree.” Only with such an agreement, the brief said, could there be the necessary assurance that his case against detention is now moot.
