Balkin on the Padilla Indictment:
Over at Balkinization, Jack Balkin has an excellent post on the Padilla indictment. An excerpt:
By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. . . .
That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.
You may recall that, following the Hamdi decision last year, the Administration decided not to give Yaser Hamdi a hearing, but instead released Hamdi to Saudi Arabia, extracting in return a surrender of Hamdi's U.S. Citizenship and a promise that he would not sue. Now it has indicted Padilla to avoid facing a simliar rebuff by the U.S. Supreme Court. In both cases, the Administration argued that that it was of the utmost necessity to detain them indefinitely and that it could not give these men the constitutional protections ordinarily afforded criminal defendants without severely damaging national security. These assertions now ring hollow-- Hamdi is free, and Padilla is in the criminal justice system.
Or should the prohibition on advisory opinions not matter when the Court decides to exceed its own constitutional limits to interfere with another branch of government?
It should also be noted that, when the government discerns a "constitution free zone," it is free to move cases into it. In matter such as this, by transferring the person into a detention area within the circuit.
While working in the gov't, dealing with far more lowly issues than this, I was involved in one case where the folks consciously did just this ... in a forfeiture action, moved the res into a district where the judge was seen as more friendly than the district judge involved, then moved to dismiss, since it was an in rem action. Fortunately for civil liberties, if not for the agency I represented, the district judge took a very dim view of the action. In accord with my prediction that if you really, really, annoy a federal district judge, unpleasant consequences will follow.
To sum up the argument, Padilla still has a potential Bivens claim. The fact that they've stopped violating his constitutional rights isn't really relevant. To quote my own hypo, If he had been tortured, I doubt the government could moot the case by saying, "Well, we've stopped torturing him so there's no longer an active dispute for this court to settle."
It's true that there is no current Bivens claim as this case is up on habeas. But there's a pretty strong argument that the issue of whether his detention was unconstitutional is still a live issue between the parties. It's also, of course, potentially subject to repetition and evading review.
If the Justice Department really wants to moot this case, their best bet is to admit that Padilla never met the definition of an illegal combatant in the first place. Today's indictment -- lacking any claim of a planned attack on the U.S. -- is certainly a step in that direction. If the government were to do that, they'd be essentially admiting Padilla's Bivens claim but would be able to keep the Court from reaching the main issue. They could probably make his Bivens claim go away in a plea bargain, just as they did in Hamdi.
In conclusion, it's not necessarily quite so easy for the government to stuff the genie back in the bottle.
Bonner Mall clearly stands for the proposition that the case for vacatur is strongest where the party who prevailed below "caused the mootness by voluntary action." 513 U.S. at 24. Indeed, the parties in that case agreed that "vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court." Id. at 23 (emphasis added).
This seems to be exactly the situation in Padilla; the government has taken unilateral action that (arguably) renders Padilla's habeas petition moot. So unless there's some reason why the ordinary vacatur rules don't apply in the habeas context, Bonner Mall strongly suggests that vacatur of the Fourth Circuit's opinion is required. Do you disagree?
Just to clarify, I think Balkin is using the term "moot" rather loosely, as I was doing in my earlier post. The indictment doesn't eliminate the case or controversy, or make the dispute legally moot in the technical sense, but it does mostly eliminate the reason why the Court was likely to be interested in exercising its disretion so as to grant the petition for certioari. Perhaps we should be saying that the indictment "takes the force" out of the petition, rather than that it renders it "moot." Or something like that.
In the first of two consecutive posts above, you stated, "That doesn't mean I agree that Bush's policies are bad or they are unconstitutional. Quite to the contrary." Then, in the second one, you said, "Unlike you, I believe that valid law can exist independent from my own political preferences."
Am I right that, in this case, your view of the law happens to align with your own political preferences?
I recommend avoiding logic with Mr. John.
Orin,
As for Balkin's use of the word "moot," you may be correct. But there's a world of difference between rendering the case legally moot and hoping to make the case less "interesting" so the Court won't grant cert. I've quite sure the SG will argue that the case is now legally moot but I don't think that, without more, will convince anyone on the Court who doesn't already want to be convinced. When you think about it, it's hard to see how the votes would line up. If you think what happened to Padilla is a wonderful thing and you think you've got five votes, you want to grant. Ditto if you think what happened to Padilla is a terrible thing. It's absurd to argue that Padilla doesn't present an extremely important constitutional question.
Bah. It's been a very long day. I'm going home!
The Justice Deparment's move signals both weakness and dishonesty. Those are two traits you don't want to show when the Supreme Court is about to review your case.
As a matter of strategy, I can see how it would backfire. If there are five votes on the Supreme Court to overturn Padilla, they may be even more mad at the way the Justice Department uses and withdraws false claims of national security to suit their litigation strategy.
I doubt it- the indictment doesn't talk about what they were holding him for in the naval brig- the dirty bombs. It's entirely possible that they remain unable to try him for that, since it was based on a lot of foreign intelligence sourcing (see affidavits in the 4th circuit case), but can try him for these charges, which involve mostly a domestic conspiracy.
The President's transfer of custody from Rumsfeld to Gonzales might complicate the habeas proceeding, seeing as how the Commander of the Naval Brig in South Carolina is the respondent to whom the writ would currently issue. And certainly the Court could decide to wait and see whether Padilla is convicted before deciding to hear the case. But I'm not sure the petition is moot -- that is to say, I think the Court could hear the case if it wants to. If the Court does deny the current petition, another important question will be whether it vacates the order and opinion of the Fourth Circuit.
I think we'll know a lot more about the possible effect of the indictment when we see the SG's cert. papers, which are due to be filed on Monday (although an extension is very possible).
NPR reports today that the Justice Department says that the timing of the indictment has nothing to do with the timing of the Supreme Court case. If that's an accurate description of what Justice Department lawyers said, then it shows that they are near-pathological liars.
That would be sad. Only a few years ago, Justice Department lawyers had a reputation for integrity. It's a shame if they've decided to flush it down the toilet to obtain a tactical advantage in one case.
One impact of this case could be that courts are far less likely to blindly trust Justice Department assertions of national security damage. Whether that's good or bad depends on yoru perspective.
No. That would put political preferences first. That isn't how I think. It is how you think, apparently, based on the way you framed your question.
The policies happen to be constitutional. Therefore, I do not think they are unconstitutional. I also think any administration would pursue such policies given the same factual situations -- as I said before, the law binds all administrations. I find it kind of silly to call "bad" policies that all three branches of government have sanctioned and any Executive would enforce.
Whether I like Bush, or any other politician, has nothing to do with it.
As an example, since you're (apparently) a PD, let's do this. Say that you have someone who's a gang member. The prosecution believes that he's committed two distinct crimes: (1) a murder of a rival gang member and (2) being a member of a conspiracy to distribute cocaine base.
Just because the prosecution could have (but maybe declined to) charge him two or three years ago for murder does not mean that they had the evidence and the case ready to charge him for the conspiracy.
Yet another example of fools impeding the "war on terror" by their insistence upon disregarding American law.
"Attorney General Alberto Gonzalez wouldn't answer questions on the issue. 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." WashPost.
So it looks like run-of-the-mill prosecutorial discretion.
I bet you $100 that's what's gonna happen.
That's all very well, but if they didn't have evidence to charch him with one or the other crime two or three years ago, they should have released him, and if they *did* have such evidence two or three years ago, they should have indicted him then. There should not be a three year lapse of time during which a person is incarcerated without charges being filed.
This is a sad misunderstanding of the facts. Padilla was in military custody for three years. He was just turned over to civilian authorities. Relatively quickly after civilian authorities got Padilla, they indicted him. You cannot link the three year detention to the civilian authorities as civilian authorities didn't indict for three years while Padilla was in civilian custody. That did not happen.
And there's no "sad misunderstanding of the facts," unless it's yours.
Padilla was incarcerated for 3+ years without being charged. That is not made okay by the fact that he was held by military authorities, because he was a U.S. citizen arrested on U.S. soil, and thus the military had no right whatsoever to detain him.
Had he been arrested and put in civilian custody, he'd probably have been convicted by now.
Really? That's not what the Fourth Circuit said. Apparently, it is made okay by the fact that it was the military.
Probably true. But he wasn't in civilian custody. That is why civilian authorities didn't have to charge him. They haven't lapsed at all. They indicted as soon as they got him.
This is a good point but, given the posture of the case, denying relief on these grounds would be absolutely farcical. IIRC, in Padilla I, the court kicked his petition back because he HADN'T named the commander of the military jail as respondent. If the Court now refuses relief because he is now named as respondent, they've handed the executive a 100% fool proof method of avoiding inconvenient habeas petitions -- all you have to do is transfer custody and you can make the petitioner start all over again.
"After all, the Government has not said that it will release Padilla if he is acquitted."
A good point and another reason why the issue isn't moot. In fact, the AG is still claiming that the dirty bomb allegations are valid. These char Presumably he's still an "enemy combatant." Maybe the DOD has an "enemy combatant hold" on him with the DOJ.
Yes, this was the point of Rehnquist's opinion in Padilla, in which the Court explicitly rejected Stevens' functional approach. The Court would have to overrule Padilla, the SCOTUS holding, not the 4th Circuit holding, to decide differently.
The "They" is the Bush Administration. Bush's Justice Department. Bush's military authorities. To say that the military authorities kept Padilla away from the civiliam authorities is to say that the Bush Administration kept Padilla away from itself.
No, once the proper custodian is named as a party in the proper court, then it is a simple matter to substitute the successor custodian as a party under the Federal Rules of Civil Procedure, (Does anyone ever read them anymore?) This is a non-issue. A respondent in a habeas proceeding can't moot the case by handing off custody to someone else -- jurisdiction follows the prisoner.
Not necessarily in this case. The DOJ isn't holding him unconstitutionally so even if substituted, can't be ordered not to hold him unconstitutionally. This is a big part of the DOJ's argument, I'm sure. "This Court can't order the DOD to release Padilla because they do not have him in custody. This Court cannot order the DOJ to stop detaining Padilla unconstitutionally because the DOJ has not ever detained him unconstitutionally. Why are we here?"
Further, if the Court decides to hear it, Congress could simply moot the matter by revising the Court's jurisdiction over certain classes of habeas petitions. It's been a couple of decades, but I think I recall that was what Ex parte McCardle was all about. And, as I recall, the dicta in that case aren't all that helpful to the government's case here. (IIRC, the Court accepted the new jurisdictional limitation and then dumped all over the government's case.)
Personally, I think the Padilla precedent is an outrage. If the precedent stands, then there is no control over potential abuses by the federal authorities. It is Kafkaesque that we have a government arguing that it has the authority to detain American citizens arrested on American soil for an indefinite period without charging them (remember the "Speedy and Public Trial" requirement -- it's there for a reason) at the same time that it fights a war purporting to bring freedom and democracy to a group of people who seem to be more interested in our leaving their county than internalizing our values.
Does anybody read Orwell anymore? There is a lot of "Newspeak" in the current public dialogue.
You miss the point -- if the court decides to hear the case, the Attorney General will still be the substitute custodian. The question is not whether the pretrial detention is constitutional, it is whether the military detention was constitutional. If the court decides that it is an issue "capable of repetition, &c" then the substitution and present circumstances will not affect the issue to be decided in the court.
As an analogy, consider a felon who commits crimes in two different states and is convicted in both. He can still bring an appeal or habeas petition challenging convictions in either state (or both), no matter which state actually has physical custody. To argue in one state that the petition is moot because the defendant was also convicted and is serving time in the other would lead to an endless game of prisoner ping-pong between the custodial states to prevent any appeal or habeas relief at all.
Since there is no guarantee that Padilla will be released if he is acquitted, he still has a case to argue. There is also the matter of bail -- remember that? -- that's in the Constitution, too. If the government tries to bootstrap "unarmed combatant"/three-year detention into a a basis to deny bail, then the basis for the detention needs to be heard. Further, if Padilla has a good claim, and he is acquitted, should he be required to start all over and wait another three years to get to the Supreme Court? For all I know, Padilla may be guilty as charged. None of the charges or the claims have been resolved, though. A trial will not take place for a considerable period, maybe a year, so in the worst case, the guy might be detained for what, maybe seven years before the question of military detention is even addressed? And then, he might win -- we don't know, do we? It may turn out that the detention and the indictment were the product of bad information, an overactive imagination, an overzealous prosecutor, or who knows what. In the meantime, there is a US citizen rotting in jail with no hearing for an indefinite period. That is very troubling.
Well, if you assume the guy is guilty and a danger and that the Supreme Court will order his release, then that parade of horribles will come about. I suggest, though, that you overstate the case.
So, if I decide that I think you are a clear and present danger and tell the FBI and they believe me (because I really do look very sincere and convincing), then you'd have no problem being detained indefinitely as an enemy combatant, right? Okay then, let me go get my phone . . .
You, too, might want a lawyer and a hearing under those circumstances.
They certainly could, though there are also arguments that the case is not legally moot. I have to say, though, that the Padilla case itself demonstrates just how capable of repetition but evading review this issue really is. He got relief in the Second Circuit but the government moved him so back down he goes to the Fourth Circuit where he doesn't get relief. Now that it's back up again at the Supreme Court, the government "moves" him again and asks the Court to deny him relief again because they, well, moved him.
This game of musical cells has got to stop, one way or the other, and it's up to the Court to stop it.
"The petition for writ of certiorari is now dismissed as moot. Because the case was mooted by the unilateral action of the United States, the opinion of the Court of Appeals for the Fourth Circuit is vacated. As the issues purportedly decided by the Court of Appeals are capable of repetition, it should be noted that it is the intention of this Court that the opinion of the Court of Appeals in this matter have no precedential value whatsoever, and should not be cited to or by any court as controlling or persuasive authority on any of the questions that it purported to decide."
What the Supreme Court might do:
"The petition for writ of certiorari is now dismissed as moot. Because the case was mooted by the unilateral action of the United States, the opinion of the Court of Appeals for the Fourth Circuit is vacated."
What the Supreme Court probably will do.
"The petition for writ of certiorari is now dismissed as moot."
You probably have it right. It really depends on the extent to which the justices are troubled by the government's conduct, which arguably has been evasive by design (as opposed to possibly being just badly handled on every front).
Ooh, mere technicalities, like "civilian" and "military". Mere technicalities, like "President Bush" and "my local mailman, Reginald." Mere technicalities, like "John Hancock" and "Juan Hernandez." You're right, there is no difference. Everything is chaos and anarchy! Language does not exist! Life is but a dreaaaaam!
"The petition for writ of certiorari is now dismissed as moot."
No.
"The petition for writ of certiorari is denied."
Padilla would probably have to bring a motion to vacate. This would set off quite an interesting discussion at the Court. I hope he does. He's got an excellent argument for vacatur under Munsingwear.
I think the adminstration maybe overplaying its hand. One thing that all members of the judiciary agree on regardless of their political leanings is that they really dislike being jerked around. The executive is being just a little to cute for its own good here and I would expect this to draw some reaction from the Court demonstrating its displeasure. If they decide not to take the case outright, vacating the administration's Fourth Circuit trophy case might be the way to go.
Well, if you want "mere technicalities," how about the fact that the United States is not at "war."
For that matter, the United States acted completely illegally in detaining combatants in Afghanistan. Technically, the United States intervened on behalf of one faction in a civil war. Thus, any crimes committed by people in Afghanistan (even card-carrying members of Al-Qaeda) were violations of Afghani criminal law, even if they were shooting at U.S. forces. The U.S., therefore, has no legal jurisdiction over any of these folks. The U.S. military has kidnapped these people from Afghanistan!
If you want to be pedantically (and ridiculously) legalistic, do it right.
I did. You did it Left.
I have written that this is the most abused quotation used in these debates.
I don't really mind that. Also, keep in mind that, even with cases like Milligan, the government did not allow the judiciary to interfere in the execution of a war until after the conflict was over (Milligan was in 1866). During the actual war, Lincoln, appropriately, held confederates and their collaborators without charges and without hearings, and with no access to habeas corpus.
I have no problem doing that again, and you, obviously do. Just because you do doesn't mean that Lincoln's quotation, or his actions, are being "abused."