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Wednesday, December 28, 2005
Remember Endo, the Redux
Two years ago, my friend and UM colleague, Patrick Gudridge, published a fascinating essay in the Harvard Law Review titled "Remember Endo," all about the forgotten companion case to Korematsu, Ex parte Endo, in which the Supreme Court granted a habeas petition filed by a Japanese-American internee on the ground that the government (through the War Relocation Authority) lacked the authority to hold her. [I couldn't find a free version; the cite to the Essay is 116 Harv. L. Rev. 1933 (2003).]
Pat's essay focused on the relationship between Endo and Korematsu, but there was a second holding in Endo as well -- that, so long as the district court has jurisdiction over the custodian at the time the habeas petition is filed, subsequent transfer of the petitioner outside the territorial jurisdiction of that court has no bearing on the federal courts' jurisdiction over the petition.
It is this holding that I'm reminded of today in reading SCOTUSBlog's summary of the government's latest filing in Padilla -- an unusual letter signed only by the Solicitor General, and asking the Court (presumably through Chief Justice Roberts as Circuit Justice for the Fourth Circuit) to grant the government's application to transfer Padilla to Miami. Here's the letter itself:
Download padilla_s. Ct. Application to Transfer.pdf
Anyway, what's bugging me is as follows: Given Endo, why does this matter?? Endo, on my reading, squarely rejects the argument that the transfer of a petitioner can, of itself, moot a habeas petition. But if that's true, then the real issue is whether the indictment itself moots the habeas petition, and not Padilla's actual physical location.
If that's true, though, then why is the government so concerned with Padilla's physical location? Why not wait for the Supreme Court's decision to either grant or deny certiorari, which should come sometime in the next three weeks?
Why, that is, unless we've once again failed to listen to Pat...
Posted by Steve Vladeck on December 28, 2005 at 05:04 PM in Current Affairs, Steve Vladeck | Permalink
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» Blog Round-Up - Thursday, December 28th from SCOTUSblog
On Balkinization law professor Sandy Levinson has this post on Alito and executive power. PrawfsBlawg has this post on the relationship between Padilla's case and the companion case to Korematsu, Ex parte Endo. In Ex parte Endo the Supreme Court... [Read More]
Tracked on Dec 29, 2005 1:57:09 PM
Comments
I think that all of the wrangling, between the Solicitor General, Padilla's lawyers and the Fourth Circuit, are probably better understood pragmatically rather than doctrinally. Padilla's lawyers and the Fourth Circuit panel obviously want the Supreme Court to decide the issue of the lawfulness of Padilla's detention once and for all. The government is trying to avoid that at all costs. And, based on the Court's performance the last time Padilla was there, it is likely that a majority of the justices want to dodge the issue. As has been pointed out here among other places, the indictment and even the transfer of Padilla would not necessarily moot his habeas petition. However, vacating the Fourth Circuit panel opinion and transferring Padilla to the civilian justice system would make it much easier for the Court to again deny Padilla relief on a technicality. I don't think that the government really thinks that it would win this case on the merits in the Supreme Court, and their only hope is to give the Court a plausible out. Thus, all of this pre-review back-and-forth about the less doctrinally relevant but symbolically salient aspects of the case
Posted by: SR | Dec 28, 2005 6:11:03 PM
Endo, I believe, involved a transfer of the petitioner, not his release. Endo held that the transfer of a petitioner did not strip a court of statutory habeas jurisdiction. However, the release of a petitioner ends the case or controversy, and thus arguably moots the case on Art. III jurisdictional grounds. Unless this case is capable-of-repetition-yet-evading review or falls under the voluntary cessation exception to mootness, releasing Padilla from military custody would moot his habeas petition, Endo notwithstanding. That's why people are fighting.
Posted by: anonymous | Dec 28, 2005 9:37:04 PM
But is it the "release" of Padilla that arguably moots the case, or the indictment? Put another way, is what matters _where_ he is held, or _why_ he is held?? Seems to me it's the latter, no?
Posted by: Steve Vladeck | Dec 28, 2005 9:40:18 PM
To make my point above in a slightly different way, the Gov't is not concerned with Padilla's physical location. It's concerned with the type of custody he's in. If it's not military custody, then his habeas petition is arguably moot on Art. III grounds. So if they can transfer him out of military custody, they can moot the case.
Posted by: anonymous | Dec 28, 2005 9:41:15 PM
I agree with you that what's critical is why he is held. But I think that the indictment isn't the critical fact, the type of custody is. And that's because habeas challenges custody. Thus, if Padilla is held by the military, the fact that he could just as well be held by civil authorities pursuant to an indictment is, in my opinion, irrelevant. He should still be able to challenge his military detention. Thus, the indictment isn't what's critical -- it's the change in the nature of the challenged custody.
Posted by: anonymous | Dec 28, 2005 9:45:17 PM
But my question is how the _transfer_ might itself moot the case. Does _where_ he is held really matter that much? Put another way, couldn't the _same_ warden (of the Miami FDC) hold Padilla as an "enemy combatant," and the real issue is status, not location?
Posted by: Steve Vladeck | Dec 28, 2005 9:47:56 PM
This seems to fall pretty clearly under "voluntary cessation" especially given the charges made by Judge Luttig and the Fourth Circuit.
Posted by: Alan Tauber | Dec 28, 2005 10:18:10 PM
That's a good point and one I'm not sure about. Conversely, could his enemy-combatant-based detention end and his indictment-based detention begin without removing Padilla from the SC brig (assuming that he's treated like all other indicted persons and that no rule of criminal procedure requires that he be detained in the district of prosecution)?
I guess what's motivating the Gov't is the belief that the change in location is tied up with the change in status, or will appear so to courts. I have a hard time believing that a court would say that a challenge to military detention was Art. III mooted if Padilla was still held in a brig, but allegedly only on the basis of the indictment, according to the President. Whereas, I think a court might well say that the same challenge to military detention is Art. III mooted if Padilla is held in federal prison, again allegedly only on the basis of the indictment according to the President, even if the warden could instead be basing the detention on military custody. Maybe there shouldn't be a difference, or maybe the question should be resolved solely based on the defense proferred by the Government in its response to the habeas petition, but I think that's what's motivating the linkage between location and status.
Posted by: anonymous | Dec 28, 2005 10:30:11 PM
Has anyone considered that the reason Luttig doesn't want the case mooted is that he wants SCOTUS to affirm his reasoning in the underlying case? I think he has reason to believe that a Roberts led, Alito-enhanced Supreme Court would be more likely to affirm the broad executive authority he found in the underlying case and that dismissal on mootness grounds would leave the matter up in the air.
Posted by: Paul Landskroener | Dec 29, 2005 1:31:20 PM
Paul raises what is, of course, the ultimate irony here. If Judge Luttig is still convinced by the reasoning of his original opinion, what he's done to date is the best way to keep that reasoning intact... At the same time, it's the invective and thinly-veiled criticism of the Administration that gets me; if that were really what Judge Luttig wanted, why stir the hornet's nest?
Posted by: Steve Vladeck | Dec 30, 2005 5:57:17 PM
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