Padilla Tribulations To Date
A provocative new twist has presented itself in the case of Jose Padilla (puh-DILL-uh), whose legal story has been discussed at length on related McNabb Associates blogs here and here. Mr. Padilla, an American citizen who the President unilaterally dubbed an unlawful, or unprivileged, enemy combatant [1] in 2002, has been detained by military officials in a U.S. Navy brig for over three years, without formal criminal charges. Last week, a federal grand jury sitting in the Southern District of Florida indicted Mr. Padilla on charges of general conspiracy, conspiracy to kill, kidnap, maim, or injure persons in a foreign country, and providing material support to terrorism,[2] as discussed here. The attempt to transfer jurisdiction comes at a curious time, only weeks before the matter of Presidential authority to detain citizens as unprivileged combatants was to be considered by the Supreme Court, which many perceive to be indicative of a quickly growing uneasiness over the once steadfast position of the Bush Administration.
But the transition from the province of military to criminal jurisdiction has not been as smooth as Administration officials likely might have hoped. The 4th Circuit Court of Appeals has declined to permit the transfer of Padilla from the military to the criminal realm, until the government “elaborates on ‘the different facts that were alleged by the President to warrant [Mr.] Padilla’s military detention’ as compared with ‘the alleged facts on which [he] has now been indicted.”[3] Should the government fail to distinguish the two sufficiently, the court may choose not to permit the transfer, or may otherwise vacate its previous decision in Padilla v. Hanft, discussed previously here, authorizing the military detention itself. Indeed, the court is further insisting that both the government and Mr. Padilla’s counsel “explain whether [the Court’s] earlier ruling should be withdrawn following [Mr.] Padilla’s indictment last week.” The court’s move appears to indicate a mounting frustration with the government’s unanticipated and complete reversal.[4]
Legal briefs are due by December 16 of this year. Mr. Padilla will remain in military custody at least until then.
But the transition from the province of military to criminal jurisdiction has not been as smooth as Administration officials likely might have hoped. The 4th Circuit Court of Appeals has declined to permit the transfer of Padilla from the military to the criminal realm, until the government “elaborates on ‘the different facts that were alleged by the President to warrant [Mr.] Padilla’s military detention’ as compared with ‘the alleged facts on which [he] has now been indicted.”[3] Should the government fail to distinguish the two sufficiently, the court may choose not to permit the transfer, or may otherwise vacate its previous decision in Padilla v. Hanft, discussed previously here, authorizing the military detention itself. Indeed, the court is further insisting that both the government and Mr. Padilla’s counsel “explain whether [the Court’s] earlier ruling should be withdrawn following [Mr.] Padilla’s indictment last week.” The court’s move appears to indicate a mounting frustration with the government’s unanticipated and complete reversal.[4]
Legal briefs are due by December 16 of this year. Mr. Padilla will remain in military custody at least until then.
[1] Jerry Markon, Appeals Court Balks at Approving Padilla Plan, Wash. Post, Dec. 1, 2005, available here.
[2] Indictment can be found here: United States v. Hassoun et al No. 04-60001-CR (S.D. Fl. 2005).
[3] Markon, supra note 1
[4] Molly McDonough, 4th Circuit Wants Answers on Padilla: Aplleate Court Set to Withdraw Opinion After Government Changes, ABA Journal E-Report, found here.
posted by McNabb Associates, P.C. @ 12:11 AM
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