Skip to main content

View Diary: Bush admin asks SCOTUS to overrule 4th Circ. on Padilla (43 comments)

Comment Preferences

  •  Do you have an opinion (none)
    on whether Rule 36 applies, and, if so, what the standard should be?
    •  I don't know if I know enough about it. (none)
      Does Rule 36 contemplate applicability to prisoners of war? To those in custody under the UCMJ?

      On the one hand, it seems clear that there's a pending habeas action, and that therefore "the person having custody ... may not transfer custody ... unless authorized" under the rule.

      On the other hand, the custodian has made an unopposed application to transfer custody, and the 4th c. clearly "may" authorize that transfer, but chose not to.

      Additionally, thanks to the 4th c., there is now pending a "review of a decision failing or refusing to release a prisoner," which means that prisoner may either "be detained in the custody from which release is sought." The other option, of course, is to transfer the prisoner to "other appropriate custody," or to "enlarge on personal recognizance or bail, as may appear appropriate to the court, Justice, or judge who entered the decision, or to the court of appeals, this Court, or a judge or Justice of either court."

      The heart of the 4th circuit's decision apparently rests with their confusion and disappointment in the government's disingenuous presentation of the case for holding Padilla in military custody. But now they seek to have him remain in military custody so that they can force a review of the appropriateness of that custody.

      If the 4th c. feels military custody is or was inappropriate, why not exercise their 3(a) prerogative to transfer him to someone else's custody? It seems to me that the rule contemplates transfers that do not destroy habeas applications.

      I'm not sure that the 4th c. is being any less disingenuous than the government here.

      •  I haven't done the research (none)
        but I think the problem is that the Rule contemplates transfers of custody when there is no change in the underlying basis for custody.  Here, if Padilla is transferred, the basis for his being held in custody in Florida is the relatively minor indictment - a dramatic change from the basis for holding him as an enemy combatant.  So the transfer does arguably destroy the habeas application because the basis for holding him is entirely different.  

        The Rule requires that if a transfer is granted, the new custodian be substituted as a party.  How can Florida law enforcement defend a military detention of Padilla as an enemy combatant as authorized by the President?

        Arguably, taken at face value, the 4th Circuit is being consistent and simply defending its prior opinion that military custody of Padilla is appropriate - at least based on the official record before the Court.  As the Court noted, the government has submitted nothing to amend or withdraw its previous allegations as to the reasons for Padilla's detention as an enemy combatant.  If nothing has changed, the Court can't really justify the transfer.  

        •  We should look into it some more. (none)
          It'd make an interesting project.

          Now, if Florida law enforcement is supposed to step into the shoes of the military custodian, I would think they simply wouldn't defend military detention. But is that a problem? The new custodian is substituted, and takes a new position. What's the problem? The rule doesn't say the new custodian is bound by the legal theories of the previous one. If that were the case, what would be the point of the transfer?

          If the 4th circuit remains convinced that military custody is appropriate, that's too bad. No one is asking for it. Until someone does, they can consider whether the government's prosecutorial discretion is being abused and do something crazy like issue a writ of mandamus, or bring Rule 11 sanctions and see who shows up to defend them.

          •  thank to both of you for (none)
            holding this extended discussion.

            Mother Nature bats last.

            by pigpaste on Fri Dec 30, 2005 at 04:07:04 PM PST

            [ Parent ]

          •  OK, I've looked some more . . . (none)
            and had another thought - the purpose of Rule 36 (and its appellate court counterpart FRAP 23) is to protect the jurisdiction of the lower court to modify its initial order while the habeas issue is on appellate review.  Basically, the rule prohibits transferring a prisoner out of the territorial jurisdiction of the court whose decision is being appealed to prevent loss of jurisdiction and frustration of the appeal.  The court can't order a substituted custodian to release the prisoner if the court has no jurisdiction over the custodian.  So if the Rule applies in Padilla's case, it should operate to deny the transfer simply because the government wants to send Padilla to Florida which is neither in South Carolina nor in the 4th Circuit.  The Court couldn't order a Florida custodian to release Padilla so allowing the transfer would destroy the court's jurisdiction.  Padilla hits this point in his response (p. 12), but uses it differently.  

            I finally read the SG's request for extraordinary relief in the SCt.  I don't like agreeing with him, but I think he's right on this point - Rule 36 doesn't apply.  This isn't really a transfer of custody.  It is a release from one type of custody and the beginning of another, each with a separate, independent basis.  Padilla can challenge the Florida Marshall's custody over him by a separate habeas petition if he has grounds.  

            That leaves only the mootness issue - which I think Padilla should win - with or without the 4th's help.

            You were way ahead of me Kagro, but I'm catching up.  :)

            •  Cool, thanks. (none)
              I knew there was something we should have done to get to the bottom of this. And it turned out to be reading the filings. I should have guessed!

              Anyway, I guess it just goes to show why the 4th Circuit holds the distinction of being the most-reversed in the country.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site