Padilla transferred, appears in court
on Jan 4, 2006 at 4:30 pm
(UPDATE, Thursday, Jan. 5, 2006: Jose Padilla was released from the Navy brig in Charleston, S.C., on Thursday, and was flown on a military plane to Miami. In the afternoon, he made his first appearance in federal court in the case in which he is charged with crimes related to overseas terrorist violence. He is expected to enter a plea on Friday afternoon. Here is an account, on the Southern District of Florida blog, of Thursday’s appearance.)
The Supreme Court on Wednesday agreed to permit the transfer of terrorism suspect Jose Padilla from military custody to civilian custody, but took no action on Padilla’s appeal challenging his capture and detention as an enemy combatant. The order was sent to counsel at 4:03 p.m. (Thanks to Howard Bashman of How Appealing blog for the link to the order.)
Acting on a Justice Department application (05-A-578), the Court approved the shift without giving an explanation, and without commenting on the government’s complaints that the Fourth Circuit Court had exceeded its authority by refusing to permit the transfer. It also did not react specifically to Padilla’s claim that the government lacked a legal basis for pursuing the transfer in the Supreme Court. The Court said that it “will consider the pending petition for certiorari in due course.” The case (Padilla v. Hanft, 05-533) is currently scheduled to be considered at the Jan. 13 Conference of the Justices.
The Court’s order was lengthy, but only because it recited the procedural history of the application. Its action thus cannot provide any significant clues about whether the Court is inclined to hear the case on the merits, deny review, or find it to be moot. The Justice Department argues that it is moot, but in a recent filing had suggested that its request for transfer approval was independent of the issue of mootness.
Moreover, the sparse content of the order left it unclear whether the Court believes that its own Rule 36 provided a valid basis for approving the transfer. The Rule was mentioned, but only in reciting that the government had relied upon it in the Fourth Circuit. The order certainly was not a definitive ruling on the circumstances in which Rule 36 applies.
One of Padilla’s attorneys, Jonathan Freiman of New Haven, Conn., said in a brief statement: “We’re glad Padilla will be able to defend himself before a jury of his peers, like every other American. We’re also glad that the government has recognized that Padilla’s transfer to a civilian jail does not make the case less worthy of review by the Supreme Court.”
Padilla had concurred in the government request for a transfer, but had asked the Court to hold off on that until it considered his petition. The Court implicitly rejected that suggestion by simply granting the government’s request.
Padilla very shortly will be shifted from the U.S. Navy jail in Charleston, S.C., where he has been held for more than three and a half years as an “enemy combatant,” to a federal prison in Miami. He is scheduled to go on trial later this year on charges of aiding terrorism activity abroad — charges that have nothing to do with the government’s decision to name him an “enemy combatant” because of suspicion he was planning terrorist acts inside the U.S. He was captured at O’Hare Airpot in Chicago. The Fourth Circuit, in its ruling in September on the merits of Padilla’s challenge, upheld the President’s power to order the capture and detention.
The Supreme Court’s order showed no dissents, but that did not necessarily mean all nine Justices agreed. Since Padilla had agreed in the Fourth Circuit that the transfer should be approved — a fact that the Court noted in its order — the transfer issue very likely did not trouble any of the Justices significantly. In other words, as the order was phrased, it appeared quite routine.
