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Dead Constitution See other Dead Constitution Articles Title: 4TH CIRCUIT WANTS ANSWERS ON PADILLA: Appellate Court Set to Withdraw Opinion After Government Charges 4TH CIRCUIT WANTS ANSWERS ON PADILLA Appellate Court Set to Withdraw Opinion After Government Charges BY MOLLY McDONOUGH The novelties of law relating to the case against "dirty bomb" suspect Jose Padilla keep coming, one right after another. After having served three years in detention on a military brig as an enemy combatant accused of trying to set off a radiological dirty bomb targeting Americans, the government finally charged Padilla with a series of crimes. But last week’s indictment announced by Attorney General Alberto Gonzales didn’t mention those earlier allegations, the same allegations that persuaded the Richmond, Va.-based 4th U.S. Circuit Court of Appeals to rule in September that President Bush has the authority to detain an American citizen, captured on American soil, as an enemy combatant. The new charges are that the Bronx-born Padilla was part of a cell that conspired to support terrorists and "murder individuals who are overseas." Now the 4th Circuit wants an explanation from the government. And until it gets one, it’s not releasing Padilla to criminal justice authorities for trial in Florida. On top of that, if the 4th Circuit doesn’t like what it hears, it may vacate its order that upheld Padilla’s indefinite detention, much of it incommunicado and without access to counsel. "The court is obviously troubled by what has been the most salient feature of this case from the beginning: the complete inability of the government, in any legal form, to prove the charges [that] it continuously asserts at press conferences," says Hofstra University law professor Eric M. Freedman, who has consulted on this case for Padilla’s lawyers. Freedman points out that the order came in response to an unopposed motion to transfer Padilla from military custody for trial in Florida. "The court certainly is intimating that it feels betrayed and misled by the vast chasm between the sizzle and the steak," he says. Justice Department spokesman Bryan Sierra says the government is going to "comply with the court’s order." But he declined to say anything more. In the one-and-a-half-page order, appellate Judge J. Michael Luttig directed the parties to address the following: "Whether, if the government’s motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the president to warrant Padilla’s military detention and held by this court to justify that detention, on the one hand, and the alleged facts on which Padilla has now been indicted, on the other." Padilla v. Hanft, 423 F.3d 386. While law professors, bloggers and some affiliated with the Padilla case read a sense of anger or frustration into those few lines, Richard A. Samp downplays that notion. "I don’t think you can really read anything into it until the judge issues some sort of an order on whether to vacate its decision," says Samp, chief counsel at the Washington Legal Foundation, which filed an amicus brief in the 4th Circuit supporting the government’s position. "Any time facts change while an appeal is pending, there is always the possibility that the decision will be vacated as moot," Samp says. "I would say that in many ways it would be to the government’s advantage if the 4th Circuit’s decision was vacated." Samp adds, "The way things are operating right now, it’s not as though the government needs that [4th Circuit decision in Padilla v. Hanft] for anything." Indeed, while the government reserves the right to hold Padilla as an enemy combatant at a later date, its current push is to try him. Luttig, with judges M. Blane Michael and William B. Traxler Jr. signing on, gave the government until Dec. 9 to file its brief. Padilla has until Dec. 16 to respond. The order means just one more delay in the long-fought push by Padilla to get his day in court. "Certainly I’m disappointed that they’re holding up his transfer," says Padilla’s lawyer, Donna R. Newman of Jersey City, N.J. Newman declined to speculate as to the reasons for the 4th Circuit’s order. "What we’re waiting to see is the government’s brief." Whether the U.S. Supreme Court will choose to hear the Padilla case, especially in light of the recent developments, remains to be seen. Federal authorities arrested Padilla in May 2002 in Chicago on a material witness warrant for a grand jury probe of the Sept. 11, 2001, terrorist attacks. Not long after, President Bush designated Padilla an enemy combatant, and he was transferred to military custody on a naval brig in Charleston, S.C. Padilla’s case first went to the Supreme Court in 2004. But ruling 5-4 in Rumsfeld v. Padilla, 542 U.S. 426, the high court kicked the case back for Padilla’s lawyers to refile in federal court in South Carolina. Padilla’s challenges to his detention wound their way to the 4th Circuit, which on Sept. 9 upheld his detention. That case, Padilla v. Hanft, is currently the subject of a petition for certiorari filed by Padilla. Until this recent activity in the 4th Circuit, many experts had predicted the Supreme Court would take the Padilla case again and possibly vacate the 4th Circuit’s ruling. Ideally for the government, the Supreme Court would take a pass on addressing Padilla’s challenge while letting the 4th Circuit’s pro-presidential authority ruling stand. Padilla, on the other hand, would like to have his detention challenge fully reviewed by the high court, his lawyers say. "The only issue that this order raises is whether the 4th Circuit is going to vacate as moot its own prior decision in favor of the government or whether that issue will have to be fought out at the Supreme Court level," Freedman says. Indeed, so long as the government reserves the right to bring Padilla back into military custody as an enemy combatant, George Washington University law professor Stephen A. Saltzburg says the case is ripe for Supreme Court review. "All this does is highlight the issue," says Saltzburg, who is general counsel for the National Institute of Military Justice and a member of the ABA Task Force on Enemy Combatants. He says the government is now in an "interesting position." If the government says to the 4th Circuit, "go ahead, withdraw the opinion," Saltzburg would argue that it will be hard for the government to also say that it reserves the right to bring Padilla back into custody as an enemy combatant.
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#1. To: aristeides (#0)
What a horrible joke we have become.
I have a remedy: 1/2 a box of wine, Counting Crows (August, and Receiveing the Satellites), Neil Diamond, Kenny Logins....and many others. A good amp with Burr Brown chips at a decent volume and the ability to say "Oh Well". You'll soon be on the road to recovery.
Il faut cultiver notre jardin.
I think it's air jordans myself, but call me crazy ;)
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