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Solicitor General Paul Clement today asked the Supreme Court to allow the transfer of Jose Padilla to civilian custody a few days after the request was denied by the 4th Circuit Court of Appeals. Padilla has been held since 2002. The reasons given for his civilian detention included none of the reasons initially given by the administration for his detention, including the claim that he was planning on using a dirty bomb.

Eric Lichtblau, in the New York Times:

The Bush administration asked the Supreme Court today to allow for the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, challenging an appellate court ruling last week that blocked the move...(snip)

The appeals court said that the Bush administration, in charging Mr. Padilla in criminal court in November after jailing him for more than three and a half years as an enemy combatant without charges, gave the appearance that it was trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration's credibility in the courts...(snip)

In unusually caustic language, the solicitor general said that the Fourth Circuit did not have the authority to "disregard a presidential directive." And he said its decision blocking Mr. Padilla's transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of Executive discretion, and, if given effect, would raise profound separation-of-powers concerns."

From the Washington Post on 12/22/05:
The judges said prosecutors had left "an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." They said they welcomed Supreme Court intervention because of the "enormous implications" of the Padilla case.

Some lawyers said high court involvement might be inevitable because it would be difficult for the administration to defy an appellate court and transfer Padilla at a time when it faces criticism over a secret domestic spying program and other parts of its counterterrorism efforts...(snip)

Although the Justice Department asked the 4th Circuit for permission to take custody of Padilla, the department maintained that it does not need that permission. Even the 4th Circuit acknowledged yesterday that the issue is "unclear."(snip)

"Obviously, the court feels very stung by being presented with what it thought to be a serious and heartfelt argument by the administration [to hold Padilla originally], only to learn it would turn on a dime," said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

How strongly does Justice believe that they do not need the 4th's permission,
if they are now asking permission from the Supreme Court? Is SCOTUS a pushover on this matter? What do the justices' varying opinions in Hamdi imply?
Also see Jurist-Paper Chase for Padilla's recent request for Supreme Court review of his case.

Originally posted to pigpaste on Wed Dec 28, 2005 at 08:04 PM PST.

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Comment Preferences

  •  I thought King George had inherrent powers (none)
    granted to him by the Constitution?

    -end of snark

    The early bird may get the worm, but the second mouse gets the cheese.--Winston Churchill

    by Sunqueen212 on Wed Dec 28, 2005 at 08:14:53 PM PST

    •  Unconstitutional to Refuse Pres. Bush's Orders (none)
      Interesting that the "Justice" Department is now claiming the 4th Circuit's refusal to obey one of W's commands is unconstitutional.  Apparently W and his Bush League minions feel the Constitution really does give him "untrammelled power."
      •  MY TOYS (none)
        "and, if given effect, would raise profound separation-of-powers concerns."

        I'll bet it would! The 4th Circuit already has raised those concerns to the top of the flag pole for all to see.

        Inquiry that does not achieve coordination of behaviour is not inquiry but simply wordplay - Richard Rorty

        by BuckMulligan on Thu Dec 29, 2005 at 12:20:16 AM PST

        [ Parent ]

  •  Wow. (4.00)
    In unusually caustic language, the solicitor general said that the Fourth Circuit did not have the authority to "disregard a presidential directive."

    Oh, shit.

    This should be a good one.

    •  let's parse this language (none)
      do we have Andrew Jackson again saying that JKohn Marshall has made his decision, now let him enforce it?  Does Clement plan to repeat that remark in oral arguments?  Boy that should be an interesting exchange.

      I would fully expect that Breyer would push that argument to its logical reductio ab absurdo  -- so General, does that mean that the present could order this Court to disregard anything in the Constitution or in constitutional legislation with which he disagrees, and require us to uphold every decision he makes?  Even were he to declare the United States to be a Shi'ite Muslim theocracy with him as head mullah in the role of the Grand Ayatollah?

      Oh, I hope they raise that point in open court.  I do, I do, I do....

      Those who can, do. Those who can do more, TEACH!

      by teacherken on Wed Dec 28, 2005 at 08:49:55 PM PST

      [ Parent ]

  •  The State is Moi! (none)
    King chimpy!

    I did not receive $ from Ketchum, U.S. Department of Ed or HHS to write this---though I wish I had.

    by Volvo Liberal on Wed Dec 28, 2005 at 08:24:38 PM PST

  •  Actually, this is super F-ed up. (none)
    But they may be right, here.

    Padilla is held as a military prisoner by order of the president. The president now orders him released. Padilla wants to be released, so nobody's opposing the order. The Fourth Circuit might not really be able to just decide on its own to deny the petition when nobody's opposing it.

    Still, if the SG's claim is couched in the terms above, he's swatting flies with sledgehammers.

    •  And this is... (none)
      no time to be doing that kind of shit, when people are already freaking out about executive overreaching.

      On the other hand, have some more rope, George!

      •  I am so confused (none)
        The administration is trying to pull an end-around with the SCOTUS to move Padilla to civilian custody at the same time that it was "trying to manipulate the court system to prevent the Supreme Court from hearing the case."  WTF?   Only King George would do something so blatantly unscruplous.  

        And I love the undercurrents about Luttig getting his revenge for not being an S.C. nominee.  Mmmmm... time to make some popcorn.  

      •  Especially when there are strong reasons (none)
        to believe that the unwarranted surveillance was used against Padilla.  Note the reference to the possibility of compromising confidential sources or methods in this new government filing.
    •  Steve Chapman (none)
      wrote about this on the op-ed page last Sunday in the Chicago Tribune and he hit the nail on its head.  This is what he wrote about Padilla:

      "For three years, the administration said he posed such a grave threat that it had the right to detain him without trial as an enemy combatant. In September, the U.S. Court of Appeals for the 4th Circuit agreed.

      But then, rather than risk a review of its policy by the Supreme Court, the administration abandoned its hard-won victory and indicted Padilla on comparatively minor criminal charges. When it asked the 4th Circuit Court for permission to transfer him from military custody to jail, though, the once-cooperative court flatly refused.

      In a decision last week, the judges expressed amazement that the administration suddenly would decide Padilla could be treated like a common purse snatcher--a reversal that, they said, comes "at substantial cost to the government's credibility." The court's meaning was plain: Either you were lying to us then, or you are lying to us now."

      The government should not be in the business of saving souls.

      by LynChi on Wed Dec 28, 2005 at 08:44:01 PM PST

      [ Parent ]

    •  disagree for the following reason (none)
      the president wanted him held on a specific set of circumstances and using a set of reasoning that is now being ignored in the request to transfer his case to regular courts.

      Now, had the administration in its request for the transfer said clearly that they had after careful examination determined that he did not qualify as a person who could be held as they originally thought but they had discovered other laws he had violated with which they now wished to charge him, it woujld have been harder for Luttig to make the argument he did.  But absent even the attempt at cover, he rightly identified what they were doing as a transparent attempt to get around a possible appeal of the original ruling to SCOTUS

      hey,  if wingnuts are upset at what Ronnie Earle did in Texas, why aren't they screaming at this tactic by DOJ?

      Those who can, do. Those who can do more, TEACH!

      by teacherken on Wed Dec 28, 2005 at 08:53:39 PM PST

      [ Parent ]

      •  Here's how I think they'll play it. (none)
        Padilla is in military custody by order of the president. He's only there because he's there by order of the president, and it is only by order of the president that anyone can be held in military custody as an unlawful enemy combatant.

        So the question is, how does one get out of military custody as an unlawful enemy combatant if not by order of the president. Or possibly by order of a court declaring the president's authority to hold him as an unlawful combatant to itself be unlawful?

        Presumably, there are very few ways an executive order of the president may be undone. One of them, though, must surely be by direct countermanding executive orders.

        In addition, we have another problem. The government wants Padilla transferred. Padilla wants Padilla transferred. What "case or controversy" is the Fourth Circuit deciding here? What grounds have they to create one where none exists between the parties?

        •  The mootness doctrine does not apply (none)
          when the issue is capable of evading review.  The 4th Circuit is attempting to force SCOTUS review by highlighting the fact that if the Exec can avoid review simply by tranferring the detainee to civil jurisidiction, then they will detain at will, and transfer when necessary to avoid having SCOTUS review the issue of detention of enemy combatants.  

          The 4th is making a record - and it ain't pretty.

          •  Why not? (none)
            Parties may always opt to settle, as these parties have, whether or not such a settlement would preclude review.

            What's the basis of the rejection of the transfer? There is none given. Not an exception to the mootness doctrine, not a procedural rule, nothing. It's not so much that the case is moot as that there is no basis for rejection besides the desire that a controversy be manufactured in a case where ordinarily a claim of prosecutorial discretion might suffice.

            •  Is this the key? (none)
              From the Post article:
              In requesting the transfer to Justice Department custody, the government suggested that the 4th Circuit vacate its ruling allowing Padilla to be held as an enemy combatant. But the 4th Circuit yesterday also refused to lift the earlier decision and suggested that the Justice Department request was made to avoid further judicial scrutiny.

              If the 4th must reverse its earlier decision, does it have to come up with a reason other than expediency? that is, can it reverse its earlier decision on the basis of expediency (Padilla and the Justice both want the transfer) or must it find itself to have been wrong in its first decision? If the latter, then its refusal is easy to understand. But I'm not a lawyer.

              Mother Nature bats last.

              by pigpaste on Thu Dec 29, 2005 at 12:05:20 AM PST

              [ Parent ]

            •  I think the problem here is (none)
              that having held the guy w/o charges, as if he had no civil rights under the Constitution for three years, just as the matter has managed to get to the court, W says his Emily Litella "nevermind", and sends Padilla to civil court to avoid judicial review of the original "enemy combatant" bullshit.  Now that Padilla is in the jurisdiction of a civil court, nothing stops W from waiting until that system screws with him awhile, then call him an enemy combatant again, making him jump through all the same legal hoops all over again.  The court is conserned that W could do this forever, denying SCOTUS oversight forever, due only to gaming the system.  I think SCOTUS has a perfectly good reason to step in, given the treatment this guy has already encountered.
            •  sorry for the belated response (none)
              you raise an interesting point.  I don't think "settle" is the right context, however.  Padilla wants the transfer, but also wants to maintain his petition for cert before SCOTUS.  There is no agreement between Padilla and the government to "settle," i.e., Padilla has not agreed to withdraw his petition for cert. in exchange for the transfer.  Therefore, the government is attempting to moot the petition by forcing the Court to withdraw its opinion.  The unspoken assumption seems to be that if the 4th Circuit granted the transfer under Rule 36 (and it is still an open question whether Rule 36 even applies in this circumstance), it would necessarily have to withdraw its opinion.  

              Withdrawal of the opinion would moot the petition for certiorari because there would be nothing for SCOTUS to review.  Padilla's argument in that event would be that his petition cannot be mooted because the issue would never reach the High Court if the government is allowed to avoid review simply by transferring enemy combatants to civil jurisdiction.  By refusing the transfer, the 4th Circuit keeps its opinion alive and forces SCOTUS to at least consider the petition for cert. and either grant or deny it.  In effect, the 4th is saying that because of the importance of the issue, the Court will not hang Padilla out to make his argument in a vacuum, they will support his effort to get SCOTUS to look at the issue by refusing to withdraw their opinion.  

              I say the 4th is making a record because they take great pains to explain what the government could have done to convince them - and then they shoot down each of those possibilities.  It is glaring, in your face "judicial activism."  Oh, the irony, the lovely irony. . . .  

              •  Mootness is just one issue. (none)
                The "settlement" is with regard to the transfer only. The government wants him transferred, and Padilla accedes to it. The 4th c. uses the fact that there's a pending habeas plea (which would perhaps be mooted) to intervene where no controversy exists.

                The 4th circuit isn't being asked to dismiss the habeas case. They're being asked to approve the transfer, and even then only "out of an abundance of caution." One of the ancillary benefits to the government of the transfer may be to moot the habeas case, but that's not what's at issue in these pleadings. To the extent that the court's decision hinges on it, it is of their own invention.

                That leaves no doubt, though, that it is "judicial activism." What else could it be?

                •  All of which merely highlights (none)
                  the fact that the question the 4th should have answered directly, but did not, was whether Rule 36 applies in this circumstance.  If it does not apply, I know of no basis for denying the transfer (and no reason the government would have to ask for court approval).  If Rule 36 does apply, the 4th admitted there was no objective standard to guide their discretion and did a very poor job of articulating one.  
                  •  That's pretty much what the SG said. (none)
                    And was called "unusually caustic" for it.
                    •  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.

        •  Truman's executive order in the Steel Seizure (none)
          case was invalidated, in that the Supreme Court upheld the district court's injunction against the executive branch applying that executive order.
    •  but here's the thing (none)
      Assume it's all true -- the Administration has clumsily and blatantly backed off of key facts to avoid SCT review, etc.  Padilla has other remedies other than what the 4th Cir has done, and I'm not crazy about the 4th Cir's order either.
  •  The Bushies (4.00)
    have played everyone else for fools and now they are again fooling around with the court system.  If I were a judge, I would be madder then hell with the way the Bushies are trying to manipulate the courts.  

    If the courts feel that they are being pushed by the "inherent power" of the president, they would be right to push back.  I don't know how "clubby" judges are, but if one of their own is being subjected to abuses of presidential power that might get their hackles up.

    It is getting close to showdown time.

    The government should not be in the business of saving souls.

    by LynChi on Wed Dec 28, 2005 at 08:31:45 PM PST

  •  caustic language (none)
    Those remarks are right behind the King's claim that he can continue with impunity to break the law in expressions of administrative arrogance. How can  SCOTUS be so bold as to defy a royal  ukase?
  •  I hope the Dems learn something from this (none)
    The best defense is always a good offense.

    "In unusually caustic language, the solicitor general said that the Fourth Circuit did not have the authority to "disregard a presidential directive." And he said its decision blocking Mr. Padilla's transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of Executive discretion, and, if given effect, would raise profound separation-of-powers concerns."

    I hope they lose on this one but I wouldn't give it better than 50/50 odds.

    To sin by silence when they should protest makes cowards of men~~ Abraham Lincoln

    by Tanya on Wed Dec 28, 2005 at 08:33:36 PM PST

  •  Federal Rules govern (none)
        Federal Rule of Appellate Procedure 23 prohibits moving a prisoner while a habeas matter is pending.  A case in which a Petition for Certiorari has been timely filed in the Supreme Court is still "pending".  The 4th Circuit quite properly blocked transfer out of its jurisdiction.
  •  new developments: (none)
    Padilla's lawyers seek now to block his transfer. Diaried nicely here.

    Mother Nature bats last.

    by pigpaste on Sat Dec 31, 2005 at 12:53:52 PM PST

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