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This time, audacity may not pay off for Bush administration lawyers. Having aggressively � and in the view of their critics, arrogantly � pursued an expansive view of executive power since the start of the war on terrorism, they could see their plans derailed by an escalating skirmish over “enemy combatant” Jose Padilla. Last week was punctuated by another round, in a rancorous and highly unusual exchange between the U.S. Court of Appeals for the 4th Circuit and the Bush administration over the detention of Padilla, a U.S. citizen whose case is regarded as a crucial legal litmus test of anti-terrorism tactics. In late November the government abruptly asked the appeals court to vacate a Sept. 9 decision granting President George W. Bush the right to detain indefinitely U.S. citizens as enemy combatants without charge or trial. It was a move that alienated one of the administration’s most reliable judicial allies, the largely conservative 4th Circuit. The administration’s abandonment of its aggressive position in a case that it has touted as crucial to battling terrorists confounded outsiders and infuriated the judges who had previously given the White House a highly favorable ruling. “This is perhaps the most important constitutional litigation since September 11,” says Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice. “They severely underestimated the reaction by the judiciary and other legal observers. Maybe they missed the forest for the trees and lost sight of how big this was, but this is going to hurt the credibility of the Justice Department in other terrorism cases.” The administration said in November that it wanted to drop its initial claim against Padilla � that he plotted to detonate a radioactive “dirty bomb” in U.S. cities � and instead try him in a federal court in Miami on less serious charges, including providing material support to terrorists. On Dec. 21, 4th Circuit Judge J. Michael Luttig, who had written his court’s original decision in Padilla v. Hanft granting the government a broad authority, refused the Justice Department’s request to transfer Padilla from a South Carolina Navy brig, where he has been held since June 2002, to a Miami federal prison. He also excoriated the Bush administration for its legal about-face.
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A darling of conservatives and a recent front-runner for a nomination to the Supreme Court, Luttig said that by requesting the transfer of Padilla from military custody to a civilian court, the government appeared to be attempting to evade Supreme Court review of the legality of Padilla’s detention. In light of his sterling conservative credentials, many observers saw Luttig’s ruling as a painful rebuke for the administration. But Luttig is hardly a turncoat, says Bruce Fein, a conservative Washington lawyer. “Being conservative does not necessarily mean genuflecting to the Bush administration,” Fein says. “Separation of powers should not be an ideological position.” In order to show the court had not been deceived, the 4th Circuit also sought assurance from the administration that it continued to stand behind the allegations upon which Padilla’s military detention was based, says Bradford Berenson, a former associate White House counsel who helped shape detainee litigation policy. “In my view the circuit clearly strayed beyond the appropriate bounds of judicial authority,” he says. “However, the administration can ill afford to alienate the segment of the judiciary most sympathetic to the claims of executive authority during wartime.” In a filing last week with the Supreme Court, the Justice Department asked for permission to transfer Padilla and angrily criticized the appeals court for an “unwarranted attack” on executive discretion. The brief states that the 4th Circuit’s order denying the transfer of Padilla “defies both law and logic” and “purports to exercise an unidentified and unprecedented judicial authority to disregard a presidential directive.” The Supreme Court will decide on Jan. 13 whether to hear the case. If it grants review, the Court could decide the case before its summer hiatus. It could also issue a separate, earlier ruling on the transfer request. Late last week lawyers for Padilla filed a response to the government’s transfer motion, asking the Court to delay ruling on it until Jan. 13. Padilla’s lawyers also asked that if the Court agrees to take the case, it immediately order Padilla to be released from military custody and allow him to be transferred to Florida. Fein, a former Reagan Justice Department lawyer critical of Bush’s push for expanded wartime powers, says the administration’s real sin is attempting to manipulate when and where a case involving crucial constitutional questions is heard. “No doubt that some litigation strategy is determined by whether a court might rule in your favor,” says Fein. “But this goes beyond that. The judiciary has been played as dupes.” WANTING IT ALL It’s possible that transferring Padilla to civilian custody would render his case before the Supreme Court moot, but several legal scholars � and Padilla’s lawyers � believe that it would not. In its bid to convert the case against Padilla into a federal criminal action, the government has not said that it is giving up the right to treat the Brooklyn-born former gang member as an enemy combatant. If the government persuades the Supreme Court to authorize the transfer, but then the high court refuses to hear the combatant case, Padilla could remain an enemy combatant while going through a criminal trial, a situation for which there is no legal precedent.

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Dodging Justice (December 12, 2005)• Padilla’s New Status (November 22, 2005)• Senate Amendment Would Limit Gitmo-Prisoner Challenges (November 14, 2005)• Supreme Court to Review Terror Panels (November 7, 2005)• Gitmo Case Takes Unexpected Turn (September 12, 2005)

“They are trying to have their cake and eat it too,” says William Devaney, a partner with Venable in New York and a former federal prosecutor. “If they �undesignate’ him an enemy combatant and then they lose the criminal case, they’re stuck.” In a sense, the Justice Department has been in a bind ever since Padilla was arrested by the FBI at O’Hare International Airport in Chicago in 2002. Padilla was transferred to a New York prison before being designated an enemy combatant by Bush. In June 2004 then-Deputy Attorney General James Comey said the administration had little chance of bringing charges against Padilla because information obtained through his interrogations likely wouldn’t be admissible in court. The flip-flop concerning his status could heighten the Supreme Court’s interest in the case because of the unique questions it presents, says the Cato Institute’s Lynch. “This idea that they can keep moving him back and forth is lurking out there,” Lynch says. Others, including Padilla’s own lawyers, say the transfer issue is not significant. “I don’t think it matters at all whose custody he is in,” says Donna Newman, the New York criminal lawyer who was initially appointed to represent Padilla after his arrest and who remains on his team. The members of Padilla’s defense team now find themselves in an odd position. They have long implored the government to charge their client with a crime or free him. Now he has been charged in civilian court, but his lawyers still want the question of Padilla’s enemy combatant status answered. “I’m quite confident that the government would be willing to lock him back up as an enemy combatant if the criminal charges fall through,” says Richard Samp, chief counsel of the conservative Washington Legal Foundation, the only party to file a brief in support of the government’s opposition to Supreme Court review of Padilla’s case. Samp says, however, that the government’s judgment on whether to keep Padilla detained as an enemy combatant is “subject to change over time,” regardless of the outcome of a criminal trial. Indeed, Yaser Esam Hamdi, one of the U.S. citizens designated an enemy combatant, was detained for three years, then released and deported to Saudi Arabia. Unlike Padilla, Hamdi was captured overseas. Last year, in the Hamdi case, the Supreme Court granted the government the authority to detain unlawful combatants but ruled that detainees must be able to challenge their detention before an impartial judge, although normal procedural protections, such as placing the burden of proof on the government, would not apply. CLUES FROM THE COURT Since the Supreme Court began ruling on legal challenges to the government’s right to hold terrorism suspects without charges, in 2004, defining wins and losses has proved a thorny task. Samp, for example, calls the outcome in the Hamdi case a victory for the government. Others say it was a setback for the administration. But there are reasons why the government may fear the Court taking up Padilla’s case. Clues can be found in two recent dissents. One is in a footnote in Justice John Paul Stevens’ dissent in the Court’s first hearing of Padilla last summer, in which it did not reach the merits of the case. Joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, Stevens wrote that the Authorization for Use of Military Force passed by Congress on Sept. 14, 2001, “does not authorize � the protracted, incommunicado detention of American citizens arrested in the United States.” Then, in a dissent in the Hamdi case, which divided the Court and produced four opinions, Justice Antonin Scalia wrote that the government’s options regarding U.S. citizen detainees are to charge them criminally, release them, or persuade Congress to suspend habeas corpus (a civil proceeding used to review the legality of a prisoner’s detention in criminal cases). “The government would be unrealistic if it didn’t think there was a chance it could lose this case,” says Samp. Whatever the outcome, the administration’s relationship with the lower court is wounded, says Carl Tobias, a professor at the University of Richmond School of Law who has studied terrorism prosecutions. “There is sort of no holds barred at this point,” Tobias says. “Even if there are such strongly held feelings, they usually don’t show up on the pages of opinions.” Others, including University of Miami School of Law professor Stephen Vladeck, contend that Padilla’s case is extraordinary and is not likely to cause wide ripples across the federal judiciary. But Vladeck, who studies presidential war powers, notes that the government’s response to Luttig’s order may well be eye-opening to judges across the country: “This whole exchange highlights the ever increasing conflict that conservative judges are facing in these cases between their own independence and the administration’s politics.”


Lily Henning can be contacted at [email protected].

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