MEDIA

September 1, 2006

“Enemy Combatants” and Due Process: Follow-Up on Hamdi and Padilla

Published in: Federal Bar Council News | volume XIV, No. 1

In prior issues, we discussed Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004), decided on June 28, 2004, both addressing the due process to be afforded to American citizens detained by the United States military as enemy combatants.

In Hamdi, the Court held that detention was authorized, but the detainee was entitled to a meaningful opportunity to offer evidence that he is not an enemy combatant.

In Padilla, the Court held that the Southern District of New York did not have jurisdiction over Padilla's habeas petition, which could only be brought against his immediate custodian, Cmdr. Melanie A. Marr, Commander of the Navy Brig in South Carolina. The purpose of this article is to follow up on the status of Hamdi and Padilla to date.

On Aug. 6, 2004, the Hamdi case was remanded to the Eastern District of Virginia by the Fourth Circuit in accordance with the Supreme Court decision requiring the district court to provide a meaningful opportunity to contest the factual basis for his detention as an enemy combatant.

Just as the hearing on Hamdi was about to start, the government released him and sent him to Saudi Arabia, stating that he was no longer a threat. Hamdi also gave up his American citizenship. Thus, Hamdi never got the hearing to challenge his detention to which the Supreme Court held he was entitled.

Padilla was arrested at O'Hare Airport on May 8, 2002, held as a material witness in the Southern District of New York, then designated an "enemy combatant" by President George W. Bush and transferred to the Navy Brig in South Carolina on June 9, 2002.

Padilla was labeled the "dirty bomber" because of his alleged plans to enter the United States to set off conventional explosives tainted with nuclear material and to blow up apartment houses and hotels. Decisions in the Southern District of New York and the Second Circuit granted Padilla the right to consult with an attorney and challenge his detention.

After the Supreme Court decision in June 2004, Padilla filed a petition for habeas corpus in the District of South Carolina. The district court held that the President lacked the authority to detain Padilla; that his detention was in violation of the Constitution and laws of the United States; and that Padilla must be criminally charged or released.

On Sept. 9, 2005, in Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), the Fourth Circuit reversed, answering the question "whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets" in the affirmative.

On Oct. 25, 2005, Padilla filed a petition for certiorari in the Supreme Court for review of the Fourth Circuit's decision. Then, on Nov. 22, 2005, six days before its opposition to Padilla's petition for certiorari was due, the government filed an indictment against Padilla in the Southern District of Florida, charging him with being part of a North American terror cell that sent money and recruits overseas to "murder, maim and kidnap."

The indictment also alleged that Padilla and four others were part of a North American support cell that sent money, assets and recruits overseas "for the purpose of fighting violent jihad," mentioning Egypt, Afghanistan, Bosnia, and Chechnya. Tellingly, the indictment did not include the government's earlier allegations that Padilla planned to carry out attacks in the United States.

Many viewed the Administration's sudden reversal as a move to avoid a Supreme Court review of due process rights for detainees that it might lose, and its desire to preserve its ability to designate U.S. citizens captured on U.S. soil as "enemy combatants" in the future. The Administration denied a connection between the upcoming Supreme Court review and its decision to transfer Padilla from military detention back to the Justice Department. This decision to change course paralleled the government's decision to release Hamdi just as it was facing a hearing on his detention.

On the same day it unsealed the indictment against Padilla, Nov. 22, 2005, the government made a motion to the Fourth Circuit for authorization to transfer Padilla immediately out of military custody in South Carolina and into custody of federal civilian law enforcement authorities in Florida, and for the Fourth Circuit to withdraw its September 2005 opinion holding that the President had authority to detain enemy combatants arrested in this country.

Surprising everyone, in Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005), on Dec. 21, 2005, the Fourth Circuit, which had previously held in favor of the government, denied the government's application to transfer Padilla, stating:

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.

Judge Luttig pointed out that the government had steadily maintained "that it was imperative in the interest of national security" that Padilla be held militarily. Then, shortly after the Fourth Circuit decision upholding its position, the government decided that it was no longer necessary to hold Padilla militarily. Judge Luttig was particularly disturbed by the fact that the government wanted to transfer Padilla to prosecute him for very different offenses with no mention of the acts on which the government based its military detention for over three years. Moreover, the government made its motion two days before its brief in opposition to Padilla's certiorari petition was due.

Judge Luttig cited two major reasons for denying the motion: First, the government's actions gave rise to the appearance that it wished to avoid consideration of the Fourth Circuit's Sept. 9 decision by the Supreme Court, seeking to moot it instead. Judge Luttig viewed this case as having enormous implications and significant public interest.

Judge Luttig also viewed the government's act as forum selection to avoid a Supreme Court decision. Second, Judge Luttig believed the issue was of sufficient national importance that the Supreme Court should consider it. By denying the government's application to transfer Padilla, the Fourth Circuit was maintaining the status quo pending review during the appeal to the Supreme Court. Judge Luttig opined that the government's behavior left the impression that it may have been holding Padilla for three and a half years by mistake, and that the government's current actions were undermining its credibility.

The government immediately filed an Application Respecting the Custody and Transfer of Jose Padilla with the Supreme Court, which that Court granted on Jan. 4, 2006, in Hanft v. Padilla, 126 S. Ct. 978 (2006). On Jan. 5, 2006, within 24 hours of the Supreme Court Order, the government moved Padilla to Miami, where he appeared in court for the first time. On April 3, 2006, in Padilla v. Hanft, 126 S. Ct. 1649 (2006), the Supreme Court denied Padilla's petition for certiorari on the ground that his claims were now moot, because the relief he requested was that he be released immediately or else charged with a crime. The Court stated:

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

However, the Court also acknowledged that, although Padilla was concerned that his status might be altered again, that concern could be addressed when necessary, and that the Court could rule quickly if the government sought to change Padilla's status again.

Indeed, in that event, the Court stated that the district court and other courts of competent jurisdiction "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." The Court noted further that Padilla retained the option of seeking a writ of habeas corpus in the Supreme Court under the Court's Rule 20.

Indeed, the government has not withdrawn the "enemy combatant" designation of Padilla, and has stated that it will not foreclose the option of sending Padilla back to military detention if he is acquitted in a civilian criminal trial. Indeed, in the criminal prosecution in Florida, the government's case against Padilla has suffered some setbacks. The court dismissed the first count in the indictment "that Padilla and two other Muslim men 'conspired to murder, kidnap and maim persons in a foreign country . . . to advance violent jihad,'" as duplicative of other counts.

However, the maximum sentence for the first count was life in prison, while the maximum for the remaining counts is 15 years. In addition, Padilla's lawyers have filed a motion to dismiss based on the "shocking" and "outrageous" treatment of Padilla during his three and a half years of detention. The motion describes his treatment during his detention as one of isolation and mistreatment — such as being kept awake with bright lights and loud noises.

The government's manipulation of the court system with Padilla is similar to its actions in connection with Hamdi and with Al-Marri, who was first charged with criminal fraud in district court. After 16 months of criminal proceedings and a month before his trial was to start, the President designated Al-Marri an "enemy combatant," transferred him to military custody and moved him to the brig in South Carolina.

It appears that the government has made every effort to avoid court proceedings where it might lose. Padilla's story has not yet ended. There may be more surprises in store.

[This article is reprinted with permission from the September/October/November 2006 issue of the Federal Bar Council News. Copyright © 2006 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]