The Government's Overreaching in the Case of Jose Padilla

By MICHAEL C. DORF
Wednesday, Jan. 04, 2006

As 2005 drew to a close, the already convoluted saga of Jose Padilla--the American citizen whom the government once alleged was a "dirty bomber"--took two unexpected turns. First, the government announced that after holding Padilla as an unlawful enemy combatant for over three years, it planned to transfer him to civilian custody for an ordinary criminal trial. Second, the U.S. Court of Appeals for the Fourth Circuit, which had upheld the government's power to detain Padilla in September 2005, forbade the transfer pending the Supreme Court's expected January 13, 2006 decision whether to review the September 2005 ruling. <snip>

As a technical legal matter, these questions raise issues of jurisdiction and issues regarding the interpretation of Supreme Court Rule 36. That rule requires judicial approval of the transfer of a habeas corpus petitioner (such as Padilla) while his petition for review is pending before the high court. <snip>

The December 2005 opinion denying permission for Padilla's transfer excoriates the Administration for its seemingly cavalier attitude towards determinations of whether a citizen will be tried as a criminal, or detained as an enemy combatant. Judge Luttig seems especially annoyed by the government's failure to offer any reason for the change of heart with respect to Padilla. Did the government learn new facts? Was evidence upon which it had previously relied discredited?

Or, as Judge Luttig suggests, was the government simply fearful that the Supreme Court would reverse the Fourth Circuit's initial judgment that accorded deference to the executive, and thus diminish the President's power? The December opinion is noteworthy in its repeated statements that the Administration's unexplained actions created an "appearance" or "impression" of attempting to manipulate Padilla's custody to evade Supreme Court review. (It refers to such an "appearance" five times and an "impression" another five times--in an opinion less than eight pages in total length.) <snip>

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