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Wednesday, December 21, 2005

Fourth Circuit Rules Against Government in Padilla

To what must be the government's surprise, the Fourth Circuit has ruled against it on two important points in Padilla, denying the government's motion to transfer Padilla to civilian custody, and rejecting the government's suggestion that its original opinion is now moot.

Three passages from Judge Luttig's opinion, available here, stand out:

[A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.


Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

And third:

[W]e would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.

So, what does all of this actually mean?

Well, I think it means two things:

1) Not even the Fourth Circuit is willing to put up with such transparent attempts to manipulate the judicial system.

2) At the very least, the Fourth Circuit is loath to take a hand at resolving the mootness issue before the Supreme Court does.

But, as I noted the other day, leaving its original opinion intact, while not affecting the legal analysis of whether the case is now moot, probably does go a long way to justifying the Supreme Court's review. Had the Fourth Circuit vacated its opinion, Padilla's "it's not moot" argument would have been, at least practically, a lot harder. If, as a judge, your interest is in both publicly criticizing the government's litigation strategy and making Supreme Court review as likely as possible, the Fourth Circuit succeeded here in spades.

Bottom line, I read this as Judge Luttig being very, very smart.

Posted by Steve Vladeck on December 21, 2005 at 03:14 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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