Chicago Injury Law Blog

A little of topic for this blog, but some important information regarding the recent news about the Jose Padilla case.

As you may know, the United States Court of Appeals for the Fourth Circuit recently handed down a decision denying the U.S. Government's motion to transfer Jose Padilla from the military tribunal (where he has been held without charge or indictment for 3 1/2 years) to a US District Court in Florida. The Justice Department berated the ruling as an "unwarranted attack" on Bush's discretion. The Gov't's lead atty, Paul Clement, railed the decision as "defy[ing] both law and logic."

Reading the actual decision by the Fourth Circuit (known as a conservative venue) raised major concerns worth highlighting. These concerns show that the only "attack" is by the government (i.e., the Bush administration) on judicial process, and even more significantly, on the Separation of Powers.

By way of background, Jose Padilla, a US citizen and former Chicago gang member, was detained upon arriving at O'Hare International Airport from Pakistan on May 8, 2002. The President himself designated Padilla as an enemy combatant stating in a letter to the Sec. of Defense that "Mr. Padilla engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States," and that "Mr. Padilla represents a continuing, present and grave danger to the national
security of the United States." (Taken from Padilla v. Hanft).
In June 2002, he was transferred to a Naval brig in South Carolina, where he has remained to date without any formal charges being brought against him.

Padilla filed a writ of habeas corpus in July of 2004 in a federal district court in South Carolina (also a conservative venue), arguing that the President has exceeded his powers by detaining him, and his detention violated the Constitution and laws of the United States. The district court found in favor of Padilla and the Government appealed to the Fourth Circuit.

On September 9, 2005, the Fourth Circuit overruled the district court,
holding that Padilla was validly detained under the powers granted to the President under The Authorization for Use of Military Force Joint Resolution (AUMF). The court found that Congress granted powers including "the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil."

Although Padilla is held without charge for nearly four years, due process is arguably served and the appellate court found that the law allows for this type of detention under the AUMF. Padilla then appealed the decision to the Supreme Court.

The smell of Gov't shenanigans comes to the nose only after Padilla's denial of relief and his appeal to the Supreme Court. Shortly after the Fourth Circuit's decision allowing the detention of Padilla, the government asked the same court for authorization to transfer Padilla out of military custody in South Carolina and into custody of civilian law enforcement authorities in the State of Florida. The government additionally asked the court to withdraw its earlier opinion, and at the same time the government unsealed an indictment in Florida against Padilla for considerably less serious charges. What stinks is the fact that all this was done two days before the due date of the government's brief in response to Padilla's appeal to the Supreme Court.

In sum, after nearly four years of detainment and a successful ruling at the appellate level, the government wants to withdraw the favorable ruling, transfer Padilla to civilian criminal court, and indict him for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla. Furthermore, the government wants this all to happen before the Supreme Court can decide whether or not to hear the case.

What's going on? By the government's actions I think it is pretty clear that they do not want the Supreme Court to look at this case. My guess is that there are serious flaws in the "Constitutional" detainment of Padilla, or in the attainment of information to put him there, and the government does not want this case setting precedent for cases down the road that question the scope of presidential powers during wartime. I encourage anyone to read the Fourth Circuit's opinion denying the government's motion to withdraw their earlier judgment and denying the government's request to transfer Padilla to a civilian criminal court. (See the court's order from 12/15/05). Even the Fourth Circuit's opinion says everything short of "something stinks."

I will conclude with the Fourth Circuit's conclusion:"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its
actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror — an impression we would have thought the
government likewise could ill afford to leave extant. And 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. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."

Keep up the great work on your blog. Best wishes WaltDe