Jose Padilla—DOJ Files Emergency Brief

We previously discussed the 4th Circuit Court of Appeals ruling in the case of “enemy combatant” Jose Padilla and the stunning ruling by that Court that denied the government an opportunity to moot his appeal to the U.S. Supreme Court by converting him from military defendant to ordinary criminal defendant.

Now the Justice Department has filed an emergency brief with the U.S. Supreme Court asking that it overturn the 4th Circuit ruling and immediately transfer Mr. Padilla from military to civilian custody to face trial on criminal charges.^[1] Thus, the government is calling the Supreme Court’s attention to the really big question: Can a federal court overturn an exercise of executive power, thus compelling the United States to maintain the military status of the defendant? In response to the brief, Mr. Padilla answered that he "has no objection to delaying his physical transfer for two more weeks" until the Supreme Court decides whether to hear the merits of his case.^[2] Just recently, it was Padilla seeking release and the United States arguing for his continued confinement.

The U.S. Supreme Court can take two courses of action—it can agree to hear the question or it can decline to render judicial review of the question. If the Court does decide the question, it may vacate the 4th Circuit decision and immediately require the Court to act on the District Court’s decision to transfer Mr. Padilla into civilian custody. This outcome would effectively moot Mr. Padilla’s dispute before the U.S. Supreme Court. It may also agree with the 4th Circuit and deny the government’s request for the transfer. In that case, the parties will proceed to argue their cases before the Supreme Court.

In either case, it seems likely that the legislature will be called upon to create appropriate federal rules that would take this decision out of the hands of the judiciary. The Supreme Court is likely to rule on this brief prior to the beginning of confirmation hearings for Bush nominee Judge Samuel Alito on January 9, 2006.

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[1] The 4th Circuit. v. Mr. Bush, Washington Post, Jan. 2, 2006. See also Carl Tobias, Overreaching on ‘Enemy Combatants’, Baltimore Sun, Jan. 1, 2006; John Andrews and Barry Grey, The Bush Administration and the Padilla Case: White House Caught in its Own Lies, Jan. 3, 2006; Federal Court Rebuke, Washington Times, Jan. 2, 2006; The actual brief was not publicly available at the time of this post.
[2] Id.