January 4, 2006

A quick setback for Padilla.

The Supreme Court agreed today to let the government transfer Jose Padilla to from a military to civilian custody.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., refused last month to allow Mr. Padilla to be transferred to civilian custody, declaring that the Bush administration gave the appearance of pushing for the transfer to prevent the Supreme Court from hearing the case and ruling on the government's ability to hold an American citizen like Mr. Padilla outside the civilian criminal justice system. The Justice Department assailed the ruling as an "unwarranted attack" on presidential discretion.

The clash between the Fourth Circuit and the administration was remarkable, since the circuit is regarded as perhaps the most conservative of the federal appellate courts and therefore generally an ally of the Bush White House. Indeed, in September, the Fourth Circuit affirmed President Bush's power to hold Mr. Padilla as an enemy combatant.

The Fourth Circuit's stance was surprisingly harsh, calling the administration on what it perceived as manipulation of the judicial system. Apparently, the Supreme Court did not buy that characterization.

UPDATE: Linda Greenhouse provides a more detailed report:
The United States Court of Appeals for the Fourth Circuit... issued an opinion on Dec. 21 that suggested in stinging terms that the administration was now manipulating the federal court system, with "intentional mooting," in order to avoid Supreme Court review of the case.

In his opinion for the appeals court, Judge J. Michael Luttig said that while there might be valid reasons for the administration's request for an "eleventh-hour transfer" of Mr. Padilla, "any legitimate reasons are not evident, and the government has not offered explanation." He continued: "On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course."

Judge Luttig, the author of the Fourth Circuit decision that Mr. Padilla has appealed to the Supreme Court, has generally been supportive of the administration's claims of broad executive authority and was on the short list for the court's recent vacancies. His opinion this time set off a flurry of new Supreme Court filings, led by the administration, which a week ago asked the justices to "recognize the release and transfer of Jose Padilla" from the Charleston brig to the federal prison in Miami.

Solicitor General Paul D. Clement told the court that the Fourth Circuit's order refusing the 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."

In response, Mr. Padilla's lawyers told the court on Friday that while their client was "certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years," the justices should wait the two weeks that it would take to consider his underlying appeal "in an orderly fashion."

The lawyers said "it would be highly imprudent for this court to hold that the government has an unlimited ability to transfer prisoners in military custody while their habeas petitions are pending." Mr. Padilla's Supreme Court appeal, Padilla v. Hanft, No. 05-533, began as a petition for a writ of habeas corpus, a challenge to the constitutionality of his confinement.

On Tuesday, the administration filed another brief with the court, reiterating the request for a transfer while conceding that Mr. Padilla's case would still be eligible for Supreme Court review even if he were no longer in military custody. "Granting the application will not prejudice this court's consideration of Padilla's petition," the brief said, adding, "It would, however, eliminate the anomaly of a citizen being held by the military against the wishes of both the executive and the detainee (at least in all but the short run)."

With the Supreme Court still technically on its Christmas recess, its action late Wednesday afternoon came as something of a surprise. "The government's application presented to the chief justice and by him referred to the court is granted," the order said.
I note that there is room to say that the Supreme Court didn't really so much disagree with the 4th Circuit as respond to Clement's assurance that the case would not be moot, even if Padilla were transferred. But the 4th Circuit knew that too. The government can't on its own volition manipulate the facts into mootness. The "voluntary cessation doctrine" prevents mootness, whether the government points that out or not. Luttig stressed the government's failure to give reasons for changing its approach to dealing with Padilla, and, facing the Supreme Court, the government relied on the executive's discretion in such matters and the Supreme Court seems to have accepted that.


Patrick Martin said...

I think the 4th Circuit feels like it went out on a limb to uphold the govenment's actions the first time around, and were perturbed when, being handed a win, the government folded.

brylin said...

I wonder if Luttig was upset at being passed over for Supreme Court?

Nim said...

It's not a setback. In their brief, Padilla's counsel asked the Court to do this, and not make a simultaneous decision on granting cert. Which is exactly what the Court did. They specifically reserved their cert decision for later.

The DoJ's position all along has been that Padilla's habeas petition is moot, regardless of the 4th Circuit's refusal to let Padilla be transferred. Padilla has argued that it's not moot even if he is transferred. One of them is right, and the issue was either moot when the executive decided to transfer him, or is still ripe. Transferring him now doesn't matter.

Eli Blake said...

The 4th circuit perceived that the administration was trying to 'lock in' the previous ruling without review, and that understandbly disturbed them. But what the SCOTUS did was reasonable-- they transferred him so he will be tried in the civilian court, but they are still reserving the right to review the case.

Thersites said...

Nim, your post is very lawyweresque. I find that shocking.

Ann Althouse said...

Nim: I think you're defining the word "setback" too broadly.

Nim said...

"Nim: I think you're defining the word "setback" too broadly."

Perhaps. But there's no reasonable way to view what the SCOTUS did as a rejection of the 4th circuit's characterization of the government's conduct as a "manipulation of the judicial system," considering they specifically did not address any of the merits, and withheld deciding the cert. petition.

The 4th circuit refusing the transfer (which had been requested by the DoJ AND Padilla) did not serve to keep the case from being mooted. And so the SCOTUS was entirely correct to do what it did - allow the transfer, and decide the cert. issue later. Approving the transfer was not a substantive disagreement with the 4th circuit regarding the government's conduct, by any reasonably objective reading of what was said and done. A fairly cursory review of the parties' briefs and the SCOTUS order makes that clear.

GWPDA said...

How can the word 'setback' be defined as anything other than 'something which sets back something'? There's not a lot of room for broadening or narrowing there.... Unless we're playing Humpty Dumpty, of course, which given this administration and its cronies, wouldn't be surprising.

Ann Althouse said...

Nim: The 4th Circuit barred the transfer for a reason, and the Supreme Court didn't buy it. The 4th Circuit's action was a blow to the government, and the Supreme Court undid it. That's of some significance, though it's not an ulitmate defeat in the case.

Nim said...

The SCOTUS could have disagreed with the 4th Circuit's decision for any number reasons, only one of which (and the -least- likely, imo) is that the SCOTUS was putting the imprimatur of approval on what the government has been doing. They specifically declined to discuss the merits, or rule on the cert. decision, so I don't think it's at all reasonable to conclude that was their reasoning.

When the DoJ petitioned the 4th Circuit for the transfer, Padilla -agreed- with the request. Padilla believed that a transfer would not render his habeas petition moot. The government argued it became moot once they decided he could be transferred. The Fourth Circuit was so incensed by the disparity by what the government claimed when it justified holding him, versus what he was actually charged with, that they denied the -consent- request, on the grounds that they were going to take the rather activist step of ensuring his petition was not mooted.

Regardless of what you think of the merits of his claim, this was very properly reversed by the SCOTUS, and the most likely reason is that recognized by Padilla's counsel themselves - for purposes of the mootness argument, it's not the 4th Circuit's decision to keep him detained that keeps his claim alive. If his case is moot, it became moot when the DoJ decided not to hold him as an enemy combatant any longer.
It's much more likely that the SCOTUS recognized this, and approved the transfer to which both parties had consented earlier. To conclude that they disagreed with the 4th Circuit about the government's "manipulation" the judiciary is simply not warranted based on the order they issued. They may have agreed with the DoJ that it was not appropriate for the 4th Circuit to be the sole agent of Padilla's continuing (alleged) deprivation of due process, essentially injecting themselves into the case to prevent it from becoming moot, when both the DoJ AND Padilla had asked that he be transferred.

Burzootie said...


There's absolutely nothing in the decision which suggests the "Supreme Court did not buy that characteriziation" by the 4th circuit that the administration had engaged in "manipulation of the judicial system." Absolutely nothing. That's what you wrote, and it's wrong. The Court may later rule along those lines, but they haven't yet. All the've done is agreed to transfer Padilla while letting the other issues stay alive.

You really should correct the post.

TidalPoet said...

OT: Just a quick note that I caught your Alito comment this morning on NPR ;>

Ann Althouse said...

Tidal Poet: I missed it. Which show was it on, Morning Edition? I recorded it a while back.

Nim, Barzootie: I have more material in the update, but you probably won't be satisfied by it. I stand by the notion that the Supreme Court has backed off from the harsh stance taken by the 4th Circuit. Nothing you've said convinces me otherwise.

TidalPoet said...

Yes, Morning Edition, Legal Affairs.

Business Groups to Endorse Alito Nomination

You are toward the end of the clip (3:11 mark).

Auguste said...

That lawyerly exchange certainly was formidable.

The Jerk said...

If one-sided...