Why Did the Fourth Circuit Suggest it Might Vacate its Decision In the Case of Alleged Dirty Bomb Conspirator Jose Padilla?

By JENNIFER VAN BERGEN

Wednesday, Dec. 07, 2005

On November 22, the Department of Justice (DOJ) announced that it would finally indict Jose Padilla - whom it had held as an enemy combatant without charges for three-and-a-half years.

Attorney General John Ashcroft had claimed that Padilla - an American citizen - was a member of Al Qaeda who planned to set off a "dirty bomb" on U.S. soil. But the indictment makes no mention of such an allegation. The Washington Post explained:

Federal sources say that the original dirty bomb charges weren't prosecutable, first because the government would not be able to produce its "intelligence" or the al Qaeda sources in custody who could prove Padilla's guilt, and second, because Padilla's confession under military interrogation would be inadmissible.

After issuing the indictment, the DOJ also announced that, on President Bush's order, it would transfer Padilla from military to civilian custody.

The DOJ asked the U.S. Court of Appeals for the Fourth Circuit, where Padilla's case was last heard, to authorize the transfer. Surprisingly, though, instead of doing so, the court issued an order asking both parties to submit briefs on the question whether, "in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify that detention, on the one hand, and the alleged facts on which Padilla has now been indicted, on the other," it should vacate its earlier decision in which it ruled against Padilla's habeas corpus petition.

Why would the court want to vacate its own opinion? In this column, I'll review the history of Padilla's case and consider some explanations.

The Chronology of Padilla's Case

The relevant events began in May 2002, when Padilla was arrested by federal authorities and held on a material witness warrant.

In June 2002, however, having been secretly designated by Bush as an "enemy combatant," Padilla was transferred to military custody.

After his transfer, Padilla was not permitted to meet with an attorney until early 2004 - and even then, meetings occurred under restricted conditions. But his attorney, who had been assigned to him while he was held as a material witness, acted on his behalf before then - filing a habeas corpus petition in federal court in New York. Such a petition requires the state to prove that the prisoner is lawfully confined.

In December 2003, the U.S. Court of Appeals for the Second Circuit decided in Padilla's favor and ordered his release within thirty days. But the DOJ quickly obtained a stay of this order and appealed to the Supreme Court, which took the case for review.

In June 2004, however, in Rumsfeld v. Padilla, the Court declined to decide the issue. It declared instead that Padilla had filed his petition in the wrong jurisdiction. Since Padilla had been transferred to a military brig in South Carolina, the Court held, he should have filed it there.

Padilla's attorneys therefore filed in South Carolina and the District Court there again granted Padilla's release. The government again appealed, this time to the Fourth Circuit.

But unlike the Second Circuit, the Fourth Circuit ruled on September 18 against Padilla. It held that the President had the authority, under a Senate Joint Resolution passed on September 18, 2001 and called the Authorization to Use Military Force (AUMF), to designate as an enemy combatant and indefinitely detain Padilla.

Padilla now petitioned the Supreme Court, arguing that the Court should resolve the following question: whether the President has "the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

This petition is still scheduled to be heard despite the DOJ's indictment. On December 16, the DOJ is to file its response. This is the same day DOJ is to file its brief in the Fourth Circuit on the question of vacatur.

Given the timing of the indictment, some speculate that the DOJ is trying to avoid having the Supreme Court rule on the question raised in Padilla's petition. Apparent attempts like this to control court dockets and decision-making processes, as well as so-called "forum shopping," are frowned on by courts.

In any case, subsequent to Padilla's filing in the Supreme Court, the government indicted him, and the Fourth Circuit made its surprising request for briefing on the question whether it ought to vacate its prior decision in Padilla's case. Decisions in both courts are expected to be of great national importance.

Padilla has until December 9 to file his brief in the Fourth Circuit on the question of vacatur.

Some speculate that the government intends to argue to the Supreme Court that Padilla's habeas petition on his enemy combatant detention is moot now since he has been indicted on criminal charges. Under Supreme Court doctrine, however, the Court could review the case even where it is moot where the issue is "capable of repetition, yet evading review."

Why Did the Fourth Circuit Ask For Briefing on the Question Whether To Vacate?

So why did the Fourth Circuit ask for briefing, rather than simply granting the government's request to transfer Padilla?

The court's request for briefing indicates that it may not be happy with the government changing its facts. Indeed, as noted above, the court asked the parties whether it should vacate its decision in light of the "different facts."

Why should the changed facts matter? Significantly, the facts alleged in the indictment are not inconsistent with those the government claimed when Padilla was designated an enemy combatant and put into indefinite military detention.

The facts behind Padilla's detention, as stipulated by both the government and Padilla before the Fourth Circuit, relate to his activities in relation to Al Qaeda, leading up to and immediately following 9/11. Those alleged in the indictment relate to his activities in the mid-1990's, allegedly in support of terrorism, but not specifically in relation to Al Qaeda or 9/11.

Still, the different facts may have made the Fourth Circuit suspicious - for two reasons.

First, the charging of these separate crimes - without any mention of the AUMF - raises the question of why Padilla wasn't indicted and allowed access to an attorney much earlier.

Padilla's "enemy combatant" designation, it seems, was no barrier to an indictment. According to Jordan J. Paust, Professor of Law at the University of Houston Law Center, "there is nothing in applicable domestic or international law prohibiting the government from prosecuting either a prisoner of war or a civilian for crimes (including war crimes) in federal district courts, unless combatant immunity is found with respect to lawful acts of war." And of course, the government does not maintain that Padilla committed any lawful acts of war.

Second, the Fourth Circuit may fear that the government has been less than candid and has thus thwarted the very purpose of the writ of habeas corpus.

According to Professor Anthony D'Amato, Leighton Professor of Law at Northwestern University School of Law, a key purpose of the Great Writ was to prevent the executive from detaining a person on invented facts.

D'Amato notes that: "The King of England held political prisoners incommunicado and refused to release their whereabouts. When word sometimes leaked out as to who these people were, the King issued all kinds of trumped-up indictments to justify their incarceration in executive detention centers rather than courts. Thus, the rise of the Great Writ was to ensure that the Executive would not get away with inventing facts to justify executive detention."

D'Amato explains that in Padilla's case "the government's abandonment of the statutory [AUMF] grounds for the initial detention could have raised for the court the issue of governmental candor. Inasmuch as habeas cases have to rely upon the accuracy of the government's representations -- in the indictment, in their briefs, and in their motions -- candor goes to the heart of the executive's justification for its detention."

If indeed it appears the government was less than candid about its basis for detaining Padilla, he may then have a civil action against the government for false imprisonment.

In any event, the issues raised in the Padilla cases are as great as they are unprecedented in American history, and the decisions rendered by the Fourth Circuit and the Supreme Court seem likely to determine the course of events in this country for decades to come.


Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006.