Jose Padilla—Transfer to Civilian Control Denied

The 4th Circuit Court of Appeals has issued its opinion on whether Jose Padilla, who we have discussed a number of times previously, can be transferred to civilian control. “[I]n unusually blunt terms,” the answer is “no.”^[1] As Judge Luttig states “the government’s actions since this court’s decision issued on September 9, culminating in and including its urging that our opinion be withdrawn … have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court.”^[2] He continues by stating “we would regard the intentional mooting by this 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.”^[3]

Judge Luttig rounds out his opinion in unusually critical terms:

as the government surely must understand, although the carious 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. … While there could be an objective that could command such a price as all of this, it is difficult to imagine what the objective would be.”^[4]

The irony in this decision is that while Mr. Padilla may have “won” this battle, he is still stuck in a military brig in South Carolina.

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[1] Fred Barbash, Appeals Court Slams Administration on Padilla Detention, Wash. Post. Dec. 21, 2005.
[2] Padilla v. Hanft, No. 05-6396 (4th Cir. 2005) at 6. (PDF)
[3] Id. at 8.
[4] Id. at 12-13.