Jose Padilla—Supreme Court Reverses Federal Appeals Court

The United States Supreme Court today granted an emergency request by the government to transfer former “enemy combatant,” and now federal criminal defendant, Jose Padilla out of military custody to stand trial on federal criminal charges.^[1] The ruling undoes the recent judgment by the 4th Circuit Court of Appeals. Currently, Padilla is being held in a military brig in South Carolina.^[2]

In granting the request, the Court stated that it would still rule “in due course" on Padilla’s petition to challenge the government’s right to hold him as a military prisoner.^[3] Last October 25, 2005, Padilla filed a petition for a writ of certiorari on the issue of Presidential power and whether the government could hold him as an enemy combatant.^[4]

One of the government’s arguments against the petition is that Padilla lost the right to have his complaint heard before the highest court in the land when the he was indicted on federal criminal charges on November 17, 2005—thus effectively ending the harm he claimed to be suffering.^[5] Alternatively, they argue that Padilla lost the right to be heard by virtue of intervening events—namely, either a November 20, 2005 Presidential memorandum directing the Secretary of Defense to release Padilla and transfer him into the custody of the U.S. Attorney General (during one of those periods in which the last court of record allowed that the right to do so did pertain)…or the Supreme Court’s ruling today.^[6]

The federal charges against Padilla include three counts of conspiracy and aiding/abetting terrorism. The most interesting feature about these charges is that, although Padilla was arrested in Chicago while, as originally stipulated by both parties, there attempting to blow up apartment buildings, the current federal criminal charges specify that his violent intentions were directed outside the country.

Count One
Conspiracy to murder, maim, and kidnap individuals outside the United States in violation of 18 U.S.C. §§ 2 and 956(a)(1)

Count Two
Conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 371 and 2339A(a)

Count Three
Providing material support to terrorists, in violation of 18 U.S.C. § 2339A(a)

Padilla, and his federal appeal attorneys, will continue to await the Supreme Court’s ruling on his petition, albeit from his new cell in Florida.

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[1] David Stout, Supreme Court Allows Transfer of Padilla to Civilian Court, New York Times [hereinafter Times], Jan. 3, 2006.
[2] U.S. Supreme Court Orders Padilla Transfer Sought by Bush, Bloomberg.com, Jan. 4, 2006.
[3] Id.
[4] Times supra note 1.
[5] Supplemental Brief for the Appellant at 4, Padilla v. Hanft, 389 F.Supp.2d 678 (4th Cir. 2005) (No. 05‑6396).
[6] Id. at 4.