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Monday, February 28, 2005

District Court Orders Padilla Released

JB

A lower court in South Carolina granted Padilla's petition for habeas corpus. The opinion can be found here.

The District Court held that the President did not have authority to hold Padilla as an enemy combatant under the terms of the September 18th, 2001 Authorization of Military Force against Al Qaeda (AUMF). It followed Justice O'Connor's plurality opinion in Hamdi, which read the AUMF quite narrowly to cover the right to detain persons fighting against American forces and captured on the battlefield. Hamdi, the court explained, was arrested at O'Hare Airport and held as a material witness. He was not arrested carrying arms on a foreign battlefield.

Nor did the President have inherent authority to detain Padilla outside the terms of the AUMF because he would be acting contrary to explicit Congressional command. Congress had passed the Non-Detention Act, which states that "[n]o citizen shall be arrested or otherwise detained by the United States except pursuant to an Act of Congress." Thus, the court rejected the Bush Administration's claim that it could not be bound even by explicit Congressional laws that restricted the President's war making authority.

This opinion is a setback for the Administration. It rejects most of the Administration arguments about inherent Presidential power and gives little deference to executive construction of the AUMF, arguing that to do so would give the President too much unreviewable authority and would undermine the separation of powers and the rule of law. The opinion also suggests that at least one lower court will read Hamdi as strongly circumscribing the President's maximalist claims about executive power.

Obviously, this isn't the end of the litigation. The Administration can still appeal to the 4th Circuit, which has been quite friendly to its claims. And the Supreme Court might take the case again if the 4th Circuit reads Hamdi too narrowly. We'll just have to see what happens next.


Comments:

Unfortunately the ruling jurisprudential theory of the 4th Circuit seems to be Quod rex vult, lex fit.Mr. Hamdi will never see the light of day.

4th Circuit reverses, Supreme Court refuses to take the case.
 

What benefit could the government possibly glean from holding him as an "enemy combatant" rather than a run-of-the-mill criminal. Even at the most crucial point of his capture, the point at which the government could gather the most information out of him, he was held in a federal prison in New York. The administration is setting itself up for failure. If they win, they get nothing more out of the guy. If they lose, it gets splashed across headlines as a defeat for Bush.

By the way, its Padilla thats in the case today, not Hamdi as JB wrote in the post.
 

On the present lineup, I can't really imagine the Supremes' not granting cert. They only need four. Once the Fourth chews him up & spits him out, it should go to the SCOTUS ... assuming Chief Justice Bybee hasn't been joined by any other Yoo apprentices by then.
 

It will go up to the 4th Circuit, which will do what it will. It won't matter because the Supreme Court will then overwhelmingly overturn their decision.

We know for a fact that 4 justices (Stevens, Ginsburg, Souter, and Breyer) would find for Padilla. They were the dissenters in Rumsfeld v. Padilla that had strong words for the majority who wanted to punt on procedural grounds:

"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

"Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Based on stirring comments made by Scalia in dissent in Hamdi (who would have ordered Hamdi released even though he was a U.S. citizen captured overseas), you've got 5 votes off the bat in favor of Padilla.

I suspect also that Rehnquist (if he's still on the court) and O'Connor would vote for Padilla as well, based on their votes in Hamdi, giving Hamdi some due process rights but not all. It remains to be seen whether Padilla's presence in the country would be enough to persuade Rehnquist and O'Conner that Padilla deserves full due process protections.

In fact, the only justice I imagine would dissent in Padilla II would be Thomas, based on his scary dissent in Hamdi. "The Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the war making function." Yikes! Ever heard of the desaparecidos, Justice Thomas?

Even if the 4th Circuit affirms the S.C. district court's decision, there's no way four justices won't agree to hear this monumental case to show off their mad rhetorical skillz and create some oft-quoted precedent.

My prediction: 8-1 (Thomas dissenting). 6 will vote to give Padilla full due process rights, 2 (O'Connor and Rehnquist) will vote to give him partial due process rights a la Hamdi.

Justice will finally be done, but it's sad that 5 justices agreed to punt Padilla's case the first time on seemingly flimsy procedural grounds.
 

remember that J. Harvie Wilkinson on the Fourth wrote the opinion in Hamdi when it was in that Court and explicitly recognized the difference between battlefield capture and in-country arrest. i believe he referred to the two situations as "apples and oranges." so let's not count out the fourth yet, there's a possibility they will see the light and follow JHW.
 

Hope Nik is right; should the fact that Wilkinson is at least a 2d-tier pick for the high Court concern us any? Because ruling for Padilla would sure kill any hope of that for him in the foreseeable future.
 

The administration adopted an extreme position claiming that the courts lacked jurisdiction to review POW cases. This decision, however, adopts an equally extreme view that the government has no authority to capture a POW except on foreign battlefields. If the 4th Circut simply decides that there are issues of fact, and remands the case for a trial, it will never get to the Supreme Court.

The Hamdi decision was carefully limited to the circumstances of Hamdi's capture. This doesn't mean that laws don't apply to other circumstances. It means that other circumstances have to be evaluated on their own merits.

Padilla's capture was completely different from Hamdi. It was, however, nearly identical (except for the capture part) with the original 19 hijackers. Trained in the same camps by the same people, he was given a mission to kill thousands of people. Like the 9/11 hijackers, he tried to enter the US at an airport or border crossing. He just didn't get in.

The AUMF clearly states that it authorizes military action against those responsible for 9/11. It would be reasonable for the higher courts to find that it does apply to anyone attempting to repeat the original attack.

That any court might imagine that a POW can't be captured on US soil only reflects the fortunate circumstances that America has usually been able to fight a war "over there". Any Japanese pilot shot down on 12/7/41 would not have ended up arrested by police and jailed in civilian courts simply because he landed in Hawaii. Quirin clearly established Military authority over enemy combatants no matter where they are captured.

Should this matter be returned for a full trial, then Padilla will be almost certainly unable to continue. A POW doesn't have to testify. A criminal defendent doesn't have to testify. But if you bring a civil complaint into US Court, you must be ready to be deposed and to testify. In this case, the important issues are Al Qaeda training and the mission. Padilla has already confessed to everything, but that confession could not be used in a criminal trial. It can be used to impeach civil testimony. Padilla has committed treason, but the US doesn't have the two witnesses required by the constitution. The alternative is "confession in open court". Interestingly, the Constitution doesn't say that this confession has to be during the criminal trial, and it will certainly keep a lot of lawyers busy arguing whether confession in open court during a civil trial can be used in the subsequent criminal trial to hang him.
 

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