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Padilla Decision a Surprise and a Rebuke

Steven R. Shapiro,
Former ACLU Legal Director
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December 22, 2005

In a stunning and unexpected decision, a federal appeals court in Richmond has rejected the Bush Administration's request to transfer Jose Padilla from military to civilian custody so that he could be criminally tried after being held for three and a half years in a military brig as an "enemy combatant." Jose Padilla is an American citizen who was initially arrested by the FBI at O'Hare Airport in Chicago on a material witness warrant and then brought to New York, ostensibly to testify before a federal grand jury. Soon after Padilla's arrest, then-Attorney General John Ashcroft announced at a press conference that Padilla was engaged in a plot to detonate a dirty nuclear bomb in the United States. Later, the government claimed that Padilla was planning to blow up apartment buildings in New York. Padilla, however, was never charged with either crime. Indeed, he was never charged with any crime until a few weeks ago when he was indicted by the government as a relatively minor player in an alleged conspiracy to provide "material support" to terrorists overseas.

The government's legal strategy has been shifting as frequently as its accusations against Padilla. The only constant is that the government has strenuously sought to avoid any judicial review of Padilla's treatment. When it looked like a federal court in New York was going to review his initial arrest as a material witness, the government declared him an "enemy combatant," placed him in the military's hands, and then argued that the New York court lacked jurisdiction to review his legal claims. A few weeks ago, just as the Supreme Court was poised to decide whether to hear Padilla's challenge to his military detention, the government sought to place him back in civilian court and to argue that his appeal was now moot.

This legal shell game turned out to be too much for the Fourth Circuit, the federal appeals court that had upheld Padilla's military detention as an "enemy combatant" three months ago. This week's opinion (pdf) was written for a unanimous three-judge panel by Michael Luttig, a prominent conservative judge who has been frequently mentioned as a potential Supreme Court nominee. In a remarkably candid rebuke of the government, Judge Luttig stated that the government's eleventh hour request to transfer Padilla from military custody was hard to understand except as an attempt by the government to avoid Supreme Court review of its military detention policy. He then explained that the Fourth Circuit was unwilling to go along with that strategy because the serious issues raised by Padilla's detention deserved consideration by the Supreme Court.

Most remarkably of all, Lutting concluded his opinion by noting that the government's apparent effort to manipulate the legal system in Padilla's case might well turn out to have a more general impact on the government's credibility in other terrorism cases. "While there could be an objective that could command such a price of all this," Judge Luttig wrote for a unanimous three judge panel, "it is difficult to imagine what that objective would be."

Coming the same week that Congress refused to accept the Administration's proposed changes to the Patriot Act, and that the New York Times revealed a previously unknown program of spying on Americans without judicial oversight, the Padilla decision is emblematic of a growing resistance by both Congress and the courts to the Administration's expansive view of its own executive powers and disregard for traditional civil liberties principles.

Read more about the Padilla case (Human Rights First)

Read the ACLU's amicus brief

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