Padilla’s status: the same, or changing?
on Dec 2, 2005 at 5:41 pm
(The case of Jose Padilla, a U.S. citizen being held by the government as an “enemy combatant” in the war on terrorism, is now pending in the Supreme Court and in one, two and probably three lower federal courts. The situation thus is quite fluid. This lengthy post provides an update, and an attempt to sort out the considerable confusion that has developed.)
After a flurry of legal maneuvering in recent weeks, it appears that Jose Padilla remains under a presidential designation as an “enemy combatant.” Moreover, it seems that, even if that designation were dropped, there is no assurance it would not be re-applied in the future. The situation is not likely to be clarified until later this month, if then.
Padilla’s legal status is a key to what may happen in each of the proceedings in which he is now involved. If he is not still an “enemy combatant,” and the government gave assurances that he would not be again in the future, that could simply pave the way for his trial on new criminal charges, and end the controversy — at least so far as he is concerned — about the President’s power to designate and hold “enemey combatants” indefinitely and without charges. The government, in the process, might no longer have at hand a court precedent upholding the presidential wartime authority now at issue before the Supreme Court. (For excellent analysis of that precedent, in the Fourth Circuit, see Marty Lederman’s posts here and here.)
Much of the recent maneuvering has gone on without formally notifying the Supreme Court that the situation is changing. Thus, the Court only knows, for certain, that it still has an appeal by Padilla pending, and that the government has a deadline of Dec. 16 to respond to that appeal.
On Nov. 22, six days before the government’s response there initially was due, Justice Department officials disclosed at a press conference that Padilla had been indicted in Miami on terrorism conspiracy charges, and the Bush Administration had decided to release him from military custody to be tried on those charges. But, on Nov. 23, the government did not disclose these new developments to the Supreme Court when, on that day, it asked for more time to answer Padilla’s appeal. “This extension is requested,” the Court was told in a letter signed by an aide to Solicitor General Paul D. Clement, “to complete preparation of the government’s response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.” There was no further explanation. The extension was granted, until Dec. 16. (The government had sought an extension until Dec. 28.)
Meanwhile, Padilla’s case was still moving along in U.S. District Court in South Carolina, and in the Fourth Circuit in Richmond, and was being added to the docket in a pending criminal case in U.S. District Court in Miami.
For the time being, however, Padilla is both an “enemy combatant” and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: “A senior attorney at the Solicitor General’s Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him.”
On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would “supersede” his earlier order designating Padilla an “enemy combatant” and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla’s custodian. In fact, another of Padilla’s lawyers, Michael P. O’Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order “does not remove the designation of ‘enemy combatant’ that the President placed upon Mr. Padilla…” And O’Connell said that “the government continues to assert the authority to return Mr. Padilla to military custody.”
O’Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: “Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed” until the Supreme Court acts on Padilla’s appeal to the Justices.
The legal uncertainty, of course, is pervasive, and remains quite confusing.
In the South Carolina proceeding, a U.S. magistrate judge, Robert S. Carr, has before him a request by Padilla’s local counsel there to set up a framework for them to challenge the factual basis for his designation as an “enemy combatant.” (The Fourth Circuit on Sept. 9 had upheld the President’s authority to give that designation to Padilla, and to detain him under that designation, but it did not resolve the factual challenge.)
Briefs were to be filed with Judge Carr on Nov. 29. A day before, and following the new civilian indictment of Padilla, O’Connell sought the stay of those proceedings, apparently fearing that a dismissal might come in the wake of the new circumstances. Judge Carr, apparently thinking that Padilla had already been removed “from this jurisdiction,” said later that day that O’Connell’s stay motion was “moot.” (He apparently was mistaken, since, so far as is publicly known, Padilla remains in the Navy brig in Charleston.)
The federal government, of course, has asked the Fourth Circuit to approve Padilla’s transfer out of the brig, into federal civilian custody at a U.S. prison in Miami. The Fourth Circuit so far has refused to do so, until it examines the shift in the government’s handling of Padilla.
When that Court on Sept. 9 ruled that the President had the authority to name Padilla an “enemy combatant” and to hold him captive during the war on terrorism, the decision was explicitly based upon a joint agreement about the facts. “It is only on these facts,” the opinion said, “that we consider whether the President has the authority to detain Padilla.”
The opinion commented: “Padilla was, on the facts with which we are presented, ‘armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States.'” Later, the opinion recited these facts: “Padilla associated with forces hostile to the United States in Afghanistan…Padilla took up arms against United States forces in that country.” His detention, the Court concluded, was necessary “in order to prevent his return to the battlefield.”
The opinion also took account of facts — apparently garnered in secret interrogations of an Al Qaeda operative, Khalis Sheikh Mohammad — that Padilla had been “directed to travel to the United States for the purpose of blowing up apartment buildings, in continued prosecution of Al Qaeda’s war of terror against the United States….Padilla flew to the United States in order to carry out his accepted assignment.” Thus, the Circuit Court concluded, it made no difference that he ultimately was captured on American soil (in Chicago), and not in a foreign battle zone.
The scary recital matched the picture the government has been publicly displaying of Padilla for the past couple of years. In a celebrated press conference on June 1, 2004, then-Deputy Attorney General James Comey revealed the apartment blowsup plot in telling the public “the sobering story of Jose Padilla.” That account, he said, “will allow the American people to understand the threat he posed and also understand that the president’s decision [to name him a combatant and detain him].” Besides the plans to blow up apartment buildings, Comey recalled the by-then familiar government asertion that Padilla had planned to release a radioactive bomb in the U.S.
The Comey revelations, of course, made their way into the government’s arguments that led the Fourth Circuit to uphold Padilla’s designation.
But that picture of Padilla’s actions is markedly different from the picture that emerges in the new criminal indictment. The Justice Department laid that indictment before the Fourth Circuit as part of its filings seeking approval of his transfer from military to civilian custody for trial on the indictment. The Circuit Court no doubt saw the differences between the two. And that, apparently, is what led the Fourth Circuit to raise the possibility that it would vacate its ruling in favor of the presidential authority used against Padilla — a precedent the government very much wants left on the books.
According to the indictment, Padilla played only a decidedly minor role in the activity of a “North American support cell” for terrorism. The indictment charges that he was recruited by that cell to participate in violent acts overseas, “and traveled overseas for that purpose.” There are 11 counts in the indictment, which names Padilla along with four others. But Padilla is charged in only three of the counts — conspiracy to commit murder and other violence “in a foreign country,” conspiracy to “provide material support for terrorists,” and providing “material support for terrorists.” There is no mention of the facts about the apartment blowup or the radioactive bomb (apparently because the government got some of that evidence from interrogating Padilla, and some from Al Qaeda operatives it does not want summoned as witnesses.)
The Fourth Circuit, in its order Nov. 30 calling for new briefs on whether to vacate its Sept. 9 ruling, cited the “different facts that were alleged…and held by this court to justify” his detention, “and the alleged facts on which Padilla has now been indicted.”
The final of those newly summoned briefs is due Dec. 16 — the next key date, too, in the Supreme Court proceedings.
Plainly, the process has much further to go, with the outcome shrouded in more doubt than at any time since Padilla was named an “enemy combatant” on June 9, 2002.
