Jose Padilla For Dummies

Yesterday, the Supreme Court approved the Justice Department's request to have Jose Padilla transferred from military to civilian custody. In the wake of this ruling, a lot of confusion, spin, and tea-leaf reading was happening, and most of it was inaccurate. After reading one law professor's description of the ruling that was not, in a word, correct, it seemed that a summary of the facts and procedure in this case was appropriate, since it doesn't make a whole lot of intuitive sense unless you've slogged through the briefs and court orders. The writers at ScotusBlog deserve kudos for meticulously documenting this case as it has progressed, and linking to the parties' briefs.

Anyway, here's a (hopefully) plain-English version of what's been happening in this case.

In May 2002, US citizen Jose Padilla was arrested on US soil, designated an "enemy combatant," and put into military custody.

Padilla challenged the government's decision to hold him without charges, apparently indefinitely, and argued that he can't be considered an "enemy combatant" and deprived due process rights afforded to any other citizen arrested. The challenge is brought in a federal District Court in the 2nd Circuit, which includes Chicago (where Padilla was arrested). Padilla's challenge is brought through a "Petition for a writ of habeas corpus," and not a lawsuit for damages against the goverment, or an action for "declaratory judgment," where he would ask the judiciary to declare the executive's "enemy combatant" policy unconstitutional (either on its face or as applied to him). The 2d Circuit rules against the government.

The Supreme Court vacates the 2d Circuit decision, not on the merits of the argument, but on the grounds that the 2d Circuit was not the proper location for the suit. Padilla re-files the habeas petition in a District Court in the 4th Circuit.

The District Court in the new suit rules in favor of the government. However, no trial on the facts was held; it was a decision only on the legal issue of whether Padilla could be held as an "enemy combatant." For purposes of this decision, the court assumed that all of the government's allegations about Padilla were true.

Padilla appealed to the 4th Circuit which upheld the district court. Again, there was no decision on the truth of the government's claims regarding Padilla's terrorist ties or activity, as Padilla was claiming that even if everything the government said was true, they were still not entitled to hold him indefinitely without charges.

Just a few weeks after the 4th Circuit certifies its order as a "final decision," Padilla files a request for the Supreme Court to review the 4th Circuit's decision (known as a petition for a writ of certiorari). This is where the gamesmanship begins.

Before the government replies to Padilla's appeal request, it gets an indictment against him in a Florida federal court. The charges bear little relation to the story the government told the courts when it was arguing that Padilla was an "enemy combatant" whom they could detain indefinitely.

Shortly after Padilla is indicted, the Justice Dept. files its brief with the Supreme Court arguing that it should not take Padilla's appeal because the case is now moot. The government argues that because Padilla was seeking a writ of habeas corpus, he no longer has a claim, as the government no longer wants to hold him as an enemy combatant.

While the appeal request is pending in the Supreme Court, the DoJ asks the 4th Circuit to approve Padilla's transfer from military custory to civilian custody, and to vacate the decision in its favor. The DoJ states that they no longer need or want to hold Padilla as an enemy combatant, and since he has been indicted, he should be transferred to the civilian jail to await trial. The most reasonable interpretation of the DoJ's request that the 4th Circuit vacate a ruling in the executive's favor, is that they did not want the constitutionality of their program decided by the Supreme Court, and were trying to render the case moot.

In their reply brief, Padilla's lawyers agree that he should be transferred to civilian jail, and argue that the case won't be rendered moot by such a transfer:

Padilla believes the appropriate course of action is for this Court to order his immediate transfer to civilian custody, and to defer action on the question of whether to recall the mandate until after the Supreme Court disposes of his petition for certiorari, which is currently scheduled to be considered in early January.

The 4th Circuit then generates a tsunami of confused headlines and analysis when it denies the request both parties had made, to transfer Padilla. The court was not happy when it saw Padilla's indictments, which bore little resemblance to the allegations the government had made when justifying its designation of Padilla as an "enemy combatant." Nothing about "dirty bombs," for example. So, the 4th circuit came right out and said, in essence: "We no longer think you're being honest about why you needed to hold Jose Padilla for years without charges or a trial, and it's obvious you're trying to keep the Supreme Court from looking into that, by making the issue moot. So we're not going to cooperate, and keep him where he is, so that the Supreme Court can deal with this."

Now, the problem with this is that the 4th circuit was almost certainly wrong about their conclusion; keeping Padilla in military detention against the will of the people holding him was not likely to affect whether his habeas petition was moot, one way or the other. In my opinion, the 4th circuit knew this as well, but wanted to send a clear message to the DoJ and the Supreme Court, that the government was acting in bad faith, and should not be allowed to avoid having its actions reviewed -right now-.

So, the government appealed this order to the Supreme Court, asking it to approve Padilla's transfer. Importantly, they conceded in a brief that transferring Padilla now would not render his case moot. They argued that if it was moot, it was moot when they wanted to let him go. Holding him in military custody now or transferring him would not affect his appeal to the Supreme Court:

Granting the application [to transfer Padilla] will not prejudice this Court's consideration of Padilla's petition for certiorari. It would, however, eliminate the anomaly of a citizen being held by the military against the wishes of both the Executive and the detainee. . .

On this point, the government was right, and yesterday the Supreme Court agreed.

In agreeing to transfer Padilla, the Supreme Court did not discuss the mootness issue, or make any ruling on Padilla's request for an appeal, which will be considered later this month. In short, this is a very inconsequential order, and it is not, as certain law professors have claimed, either a setback for Padilla, or a repudiation of the 4th Circuit's assessment of the government's conduct. The Justice Dept. has agreed that transferring Padilla now won't prejudice his appeal request. And that's about as straightforward as it can get: Padilla wanted out, the DoJ wanted him out, and the 4th circuit was wrong that transferring him would affect his chances to get his appeal heard.

Reading tea leaves of my own, I expect the Supreme Court will take the appeal. If it does not grant cert., it will NOT be because the issue was rendered moot by their approval of Padilla's transfer to civilian jail now. If it was moot, it was moot when Justice decided they wanted him transferred.

Also, even if Padilla's appeal isn't heard, the government is not off the hook; they've merely bought more time. Padilla most likely can go back and file a damages claim against the government. Because that issue was not involved in his habeas petition, however, he will essentially have to start over from scratch.

So there you have it.