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Tuesday, November 22, 2005

Padilla Charged in Miami (?) -- And the Loaded Weapon

As I write this, Attorney General Gonzales is apparently announcing that the federal government is indicting accused dirty-bomber Jose Padilla on a host of criminal charges in the U.S. District Court for the Southern District of Florida (who knew coming to the University of Miami would be so fortuitous?).

Padilla, who has been detained as an "enemy combatant" in South Carolina since June 2002, has a petition for certiorari pending in the Supreme Court, challenging the Fourth Circuit's September decision that the President has statutory (and perhaps constitutional) authority to hold Padilla without charges as an "enemy combatant." Presumably, the criminal indictment will largely, if not entirely, moot out most of the issues in the pending cert. petition (more on that in a later post).

For now, two important observations need to be made:

First, Andy Patel, one of Padilla's court-appointed laywers, has been fond of saying, since early in the litigation, that he's "the only criminal defense lawyer in the United States trying to get his client indicted." So true.  The indictment of Padilla has to be seen for what it is -- once again, the government is trying to moot out a case that they know they will likely lose (for vote-counting reasons I've described in more detail here) in favor of keeping a good precedent (the Fourth Circuit's decision) on the books. 

So, as much as it is an important victory for those, like me, who believe that the detention of U.S. citizens without charge -- especially those, like Padilla, picked up in the United States -- is fundamentally abhorrent to the American constitutional tradition, it's not a complete victory by any means.  After all, mooting out the cert. petition (assuming the Court now decides not to take the case) leaves the Fourth Circuit's broad endorsement of presidential power during wartime intact, and it's hard to escape the allusion to Justice Jackson's "loaded gun" from Korematsu.

Wow.  So much more to say, and I'll try to say more later.  For now, let me just say that I have a nice, big couch, for those who might be coming down here for the trial... :-)

[Disclaimer: I've been involved in the Padilla case, off and on, since the summer of 2002, and was part of a student team at Yale Law School that helped draft various of the amicus briefs in the Second Circuit and Supreme Court in Padilla "I".]

Posted by Steve Vladeck on November 22, 2005 at 11:14 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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By MARK SHERMAN, Associated Press Writer 5 minutes ago WASHINGTON - Jose Padilla, a U.S. citizen held without charges for more than three years on suspicion of plotting a dirty bomb attack in this country, has been indicted on three co... [Read More]

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Issue 2 of The Pocket Part, The Yale Law Journal's online companion publication is now available. In this issue, Harvard Professor Kenneth Mack takes on the conventional historical account of the NAACP litigation strategy that led to Brown v. Board... [Read More]

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As a supporter of the war in Iraq, I agree completely with the position taken by Steve Vladek and others on the Padilla and similar cases. There are all kinds of reasons, deontological, consequentialist, doctrinal, and even of U.S. self-interest why the position of the U.S> Government on this should be rejected.

Posted by: Fernando Teson | Nov 22, 2005 10:52:33 PM

That's right, of course -- from Padilla's perspective, this is a good thing. But if the government were really trying to "remedy" the status that Padilla's complaining of, shouldn't they seek to vacate the Fourth Circuit's opinion? Otherwise, if the Supreme Court denies cert., and nothing else happens, there are potentially serious preclusion problems...

Posted by: Steve Vladeck | Nov 22, 2005 6:01:00 PM

Here and elsewhere I see criticism of the Government for trying to moot Padilla's Sup Ct appeal. Funny, I would have thought that if they're remedying the status that he's complaing of, because they think he mighty prevail, that is the right thing to do.

Posted by: rodgerlodger | Nov 22, 2005 5:56:56 PM

P.S. Here's a now-available link to the indictment:


Posted by: Steve Vladeck | Nov 22, 2005 12:04:57 PM

I would think that there's a good argument for having the CA4's opinion vacated based on the doctrine that usually requires vacatur when one party voluntarily moots a case and thereby prevents its opponent from obtaining review of an unfavorable decision. See U.S. Bancorp v. Bonner Mall, 513 U.S. 18, 23 (1995) (noting that "vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court").

Posted by: Madisonian | Nov 22, 2005 11:48:11 AM

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