Hell Hath No Fury Like a Conservative Jurist Scorned: The Government's Overreaching in the Case of Jose Padilla

By MICHAEL C. DORF

Wednesday, Jan. 04, 2006

As 2005 drew to a close, the already convoluted saga of Jose Padilla--the American citizen whom the government once alleged was a "dirty bomber"--took two unexpected turns. First, the government announced that after holding Padilla as an unlawful enemy combatant for over three years, it planned to transfer him to civilian custody for an ordinary criminal trial. Second, the U.S. Court of Appeals for the Fourth Circuit, which had upheld the government's power to detain Padilla in September 2005, forbade the transfer pending the Supreme Court's expected January 13, 2006 decision whether to review the September 2005 ruling.

Will the Supreme Court grant review of the September 2005 ruling? Should it? Given the request to transfer Padilla to civilian custody, does the Court even have the power to review the ruling subjecting him to military custody?

As a technical legal matter, these questions raise issues of jurisdiction and issues regarding the interpretation of Supreme Court Rule 36. That rule requires judicial approval of the transfer of a habeas corpus petitioner (such as Padilla) while his petition for review is pending before the high court.

Yet at a more fundamental level, the decision the Court faces next week is about whether the Bush Administration--through its constant overreaching--has forfeited the right to deference that the courts customarily, and appropriately, afford the executive branch in times of war.

That the latest rebuke was authored by solidly conservative appellate court Judge J. Michael Luttig, only underscores the extremism of the government's conduct.

The Padilla Case, in a Nutshell

Jose Padilla is a U.S. citizen and former felon who converted to radical Islam during or after a prison term in the 1990s. According to the government, he traveled to Afghanistan, where he took up arms against the United States, and then escaped to Pakistan, where al Qaeda leaders in turn sent him back to the U.S. on a mission of terrorist destruction.

In May 2002, Padilla, arriving at Chicago's O'Hare Airport, was detained by the FBI. He was initially held on a material witness warrant issued by a federal court in New York City. But rather than indict Padilla on charges of conspiracy to commit terrorist acts, the government soon moved him to military custody.

At the time, Attorney General Ashcroft announced that Padilla was part of a plot to explode a crude radiological device, or "dirty bomb," in a U.S. city. President Bush himself signed a June 2002 letter designating Padilla as "an enemy combatant . . . closely associated with al Qaeda," and stating that the "detention of Mr. Padilla is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens."

Padilla initially obtained relief from the lower federal courts, but in June 2004, in Rumsfeld v. Padilla, the Supreme Court ruled that his original petition for habeas corpus had been filed in the wrong court. He had brought suit in New York, but because he had been moved to a naval brig in South Carolina by the time that action was filed, the Court said, he should have sued there.

Padilla then did just that, and won in the district court. But in September 2005, the U.S. Court of Appeals for the Fourth Circuit reversed. The opinion was written by Judge Luttig, who reasoned that the President had the authority to treat Padilla as an enemy combatant subject to military detention, notwithstanding the fact that he had been arrested within the United States.

In his September 2005 opinion, Judge Luttig relied on the Supreme Court's 2004 ruling in Hamdi v. Rumsfeld. There, the Court--though it rejected the President's claim that his say-so is enough to detain a U.S. citizen indefinitely--nevertheless permitted military rather than civilian detention even of a U.S. citizen, so long as the detainee is afforded an individualized hearing to determine whether he, in fact, is an enemy combatant.

As the Fourth Circuit saw the question, the fact that Hamdi had been captured in Afghanistan, while Padilla had been captured in Chicago, made no difference: Both had taken up arms against the United States abroad; if anything, the court suggested, the fact that Padilla had eluded capture until he had returned to U.S. soil made him more, not less, dangerous, than Hamdi.

Thus, the appeals court concluded, although the government could have treated Padilla as a common criminal, and subjected him to trial in the civilian courts, it was not obligated to do so. Indeed, for the court to force the choice of criminal prosecution upon the executive would ignore the deference due to the Commander in Chief and those who serve under him: "To subject to . . . exacting scrutiny the President's determination that criminal prosecution would not adequately protect the Nation's security at a very minimum fails to accord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress, such as the [September 18, 2001 Joint Resolution authorizing the use of force against the September 11 terrorists and their allies]."

The End of Deference: Judge Luttig Changes His Tone, and His Tune

The tone of that September 2005 opinion contrasts starkly with that of the Fourth Circuit's December 2005 opinion--also authored by Judge Luttig.

The December 2005 opinion denying permission for Padilla's transfer excoriates the Administration for its seemingly cavalier attitude towards determinations of whether a citizen will be tried as a criminal, or detained as an enemy combatant. Judge Luttig seems especially annoyed by the government's failure to offer any reason for the change of heart with respect to Padilla. Did the government learn new facts? Was evidence upon which it had previously relied discredited?

Or, as Judge Luttig suggests, was the government simply fearful that the Supreme Court would reverse the Fourth Circuit's initial judgment that accorded deference to the executive, and thus diminish the President's power? The December opinion is noteworthy in its repeated statements that the Administration's unexplained actions created an "appearance" or "impression" of attempting to manipulate Padilla's custody to evade Supreme Court review. (It refers to such an "appearance" five times and an "impression" another five times--in an opinion less than eight pages in total length.)

Judge Luttig concludes with a warning that "these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today."

In other words, the court is accusing the government of falsely crying "Wolf!" The not-so-subtle message from Judge Luttig is: "Don't expect us to put our necks out for you the next time you come before us asking for extraordinary powers on national security grounds. If you didn't need them for Padilla, why should we believe that you need them the next time you say you do?"

The Issues Before the Supreme Court

The Fourth Circuit based its decision to refuse to order the transfer in part on Supreme Court Rule 36, which requires judicial approval for the transfer of a habeas petitioner from one form of custody to another. But whether that rule is best read as applying in Padilla's circumstances is unclear. Judge William B. Traxler, who otherwise agreed with Judge Luttig's ruling, wrote separately to say that he thought that Rule 36 did not apply.

In any event, one point is clear: Rule 36 does not set forth a substantive standard governing the circumstances under which permission for custody transfers should apply, and so it is unlikely to play much of a role in the Supreme Court's consideration of whether to grant the petition for review.

The government urges the Supreme Court to deny review for three principal reasons. First, the government contends the case is moot. Why argue over whether Padilla can be held in military detention, when the government is now trying its best to transfer him to the criminal justice system?

Second, the government contends that, insofar as the case is not moot, it is not final, and thus review would be premature. Federal courts typically review "final" judgments, and only rarely grant what are called "interlocutory appeals--appeals that occur in the midst of a case. (If this contention seems to be inconsistent with the first one, that's because it is.)

Third, the government argues that the Fourth Circuit's September 2005 ruling was correct, so that review is unnecessary; the Supreme Court can just let that ruling stand.

Are these contentions correct? Let's consider them in turn.

Is Padilla's Case Moot?

Federal courts, including the Supreme Court, do not decide merely hypothetical cases, and so if a party has obtained everything he wants from a lawsuit, there is no occasion for the Court to hear his case. The issue is moot. Accordingly, the government argues in its opposition to Padilla's petition for a writ of certiorari that it is ready to give Padilla all the relief he seeks--release from military custody. He prefers civilian custody, after all.

But the government's mootness argument neglects the fact that, as Padilla's lawyers have noted, Padilla does not wish to be transferred to civilian custody until after the Supreme Court rules on his certiorari petition.

Moreover, the Court long ago fashioned an exception to the mootness principle for issues that are "capable of repetition yet evading review."

Suppose, for example, that somebody wishes to bring a challenge to a form of custody that, by definition, only lasts for a few weeks. Because of the temporary nature of the custody, he will be released before the case completes its journey through the courts.

If his release were held to moot his case, then no court would ever hear his challenge--because each time it was raised, it would also be mooted. To avoid such a scenario, then, the challenge will be permitted even after the detainee has gone free.

The government argues that Padilla's case does not fit within the exception because it is highly unlikely that he himself will be reclassified as an enemy combatant now that the Administration has decided to indict him as a criminal. Yet this narrow framing of the capable-of-repetition-yet-evading-review concept seems to miss its point in a case like Padilla's.

As Judge Luttig's December opinion suggests, the Administration's conduct indicates that it may be attempting to evade review of the issue a case like Padilla's raises: whether any U.S. citizen--not just Padilla himself--who has been captured within the United States but is alleged to be "associated" with a foreign terrorist organization, can be relegated to military detention?

By holding other people like Padilla for years, only to transfer them to civilian custody on the brink of Supreme Court review, the Administration could indeed evade review indefinitely.

Is Padilla's Case "Interlocutory?"

In general, the Supreme Court only reviews final determinations of lower courts. The government argues that even if Padilla's case is not moot, it is "interlocutory," that is, not yet final.

Why not? Because the Fourth Circuit's September decision remanded the case back to the federal district court, for a determination of whether there was a sufficient factual basis for treating Padilla as an enemy combatant.

The government is right that the Supreme Court typically denies review of cases in which further factfinding needs to occur. But that principle appears inapplicable to Padilla's case.

For one thing, under the Supreme Court's Hamdi decision, it is clear that the federal district courts will grant deference to factfindings made by properly constituted military tribunals, and so it is highly unlikely that the district court would undertake its own independent factfinding.

More fundamentally, there is no need to defer this issue so that further factfinding (however deferential) can take place, because the issue presented by the Fourth Circuit's decision is a question of pure law.

The legal question is this: Is military detention authorized for persons with the characteristics that the government ascribes to Padilla? The Court can decide that question now.

Did the Fourth Circuit Get it Right?

Finally, the government argues that the Fourth Circuit decision does not require review because it was correct. It's true that correctness can be a ground for denying a petition for certiorari. But, on the other hand, the Court often grants review of decisions it will ultimately deem correct, because of their importance. And the Padilla decision is undoubtedly important--touching, as it does, on the urgent issue of civil liberties within the "war on terror."

No wonder, then, that Judge Luttig himself strongly hinted in his December opinion that the stakes in Padilla's case warrant Supreme Court review. No doubt Judge Luttig still thought the September decision was right on the law (even if based on government representations regarding the facts that may now be subject to doubt). But he recognized that a case like Padilla's requires a delicate balance of protection for our civilian institutions of justice against the exigencies of national security in wartime. Questions of such magnitude warrant resolution by the Supreme Court.

The Bottom Line: Only the Supreme Court Can Resolve this Issue

The Padilla case presents truly difficult issues on the merits. Here's why.

In the Hamdi case, only Justices Stevens and Scalia thought that a U.S. citizen had a right to be tried (for treason) in a civilian court. The lead opinion held, to the contrary, that a U.S. citizen who has taken up arms against the United States, can be held by the military--so long as he is afforded a fair opportunity to contest his classification as an enemy combatant. As the Fourth Circuit ruled last September, it is not clear why someone who is, in other respects, classifiable as an enemy combatant, should have a right to a civilian trial simply because he is apprehended inside, rather than outside, the United States.

At the same time, however, permitting military detention of someone like Padilla poses a serious threat to civilian justice because Padilla was not, after all, part of a conventional military force. Indeed, the government does not even allege that he was a "member" of al Qaeda, and more broadly, terrorist organizations rarely have formal membership procedures anyway.

Accordingly, it is not clear how to distinguish Padilla from ordinary criminals. Civil libertarians are therefore right to worry that permitting military detention of Padilla could lead to serious erosion of the protections of the civilian justice system.

More than anything, what is needed is a clear line, or at least the clear articulation of criteria for, distinguishing between citizens who can be held by the military, and those who cannot. Given that Congress, in authorizing military action in Afghanistan, Iraq, and elsewhere, has not attempted to draw that line, there are only two possible institutions from which it could emanate: the White House, or the Supreme Court.

The Bush Administration has demonstrated itself to be incapable of the line-drawing task. Since 2001, the Administration has held three Americans in high-profile cases arising out of the conflict in Afghanistan: John Walker Lindh; Yaser Esam Hamdi; and Jose Padilla.

Lindh, apprehended abroad, was indicted in a federal district court, pleaded guilty, and was sentenced to twenty years in prison for aiding the Taliban. Hamdi, apprehended abroad, was held in military custody until the Supreme Court ordered the government to provide him with a hearing on the question of whether he was in fact an unlawful combatant. At that point, he was released to Saudi Arabia in exchange for his promise not to return to the United States. Padilla, apprehended at the Chicago airport, was initially held on a material witness warrant, then transferred to military custody, and now the government has indicted him on charges that do not include the allegation of an intent to detonate a dirty bomb.

If there is a rational principle explaining how the government chose between military and civilian custody in these cases, no one in the Bush Administration has ever hinted at what that principle might be. Thus, as Judge Luttig suggests, deference to the executive is not appropriate because there does not appear to be a policy to which the courts can defer--except perhaps the dubious notion that the President can do whatever he likes.

It thus falls to the Supreme Court to grant review and draw some rational lines. Pursuant to the capable-of-repetition-yet-evading-review principle, the Court can acquiesce in Padilla's transfer to civilian custody without mooting his case. How to decide Padilla's case is a difficult question, but whether to decide it is not.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.

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