As the legal world knows by now, the United States this morning unveiled an indictment against Jose Padilla, the man formerly known as the “dirty bomber” — to be tried here in Miami some time next year. (See Marty Lederman for details and atmosphere.) The Washington Post reports that “Padilla will be transferred from a U.S. Navy brig in South Carolina to Justice Department custody at a federal detention facility in Miami, according to an order signed by Bush on Sunday,” which appears to be here, and which was followed by the government’s Unopposed Emergency Application and Notice of Release and Transfer to Custody of Petitioner Jose Padilla, filed today.
It’s a bittersweet moment for the rule of law. On the one hand, getting Padilla out of the ranks of the disappeared and into the ordinary criminal justice system is a good thing, and it’s mildly cheering that even this administration fears even this Supreme Court enough to want to prevent it from ruling on the asserted power to grab any citizen, anywhere, and hold him or her without regard to the Bill of Rights for as long as the President is minded to order.
On the other hand, this decision to charge comes rather late, at the eleventh hour, and risks leaving in place a circuit court decision with draconian implications for Presidential power. The precedent set by this case — including that of justice delayed to the point of denial — cannot, should not, must not be allowed to stand. So long as our government claims the power to lock any one of us up in solitary, indefinitely, without trial, on the unsupported say-so of any official no matter how highly placed, we can give ourselves no airs before the other authoritarian regimes of the Americas.
Although originally rumored more than a year ago (!) the latest moves in the Padilla case are striking developments in several ways.
First, the timing: the indictment comes only days before the US Justice Dept. is due to file its answer to Padilla’s petition for cert, that is just before the US would have to argue that the Supreme Court should not take review of an unusually expansive government-can-do-anything opinion by Judge Luttig in the 4th Circuit. The decision to formally charge Padilla, after all these years of holding him incommunicado in durance vile, aka the Navy Brig, most likely represents a recognition by Justice that cert — and defeat — loomed. It is now open to Justice to argue that the case is moot, avoiding a need to argue the merits.
In fact, however, this case is certainly not moot today, since the government has yet to say anything, much less anything binding, about what would happen to Padilla were he found not guilty. (Certainly, nothing in the presidential order releasing Padilla “to the control of the Attorney General” speaks to whether the alleged authority to hold him could be reinstated.) And the case may not be moot on Monday either, even if the government were to make the most iron-clad undertaking to the Court that Padilla himself would not be re-incarcerated under an “enemy combatant” theory.
It won’t be moot Monday, because it is “subject to repetition, yet evading review” (like abortion cases, which can be heard long after the particular facts have matured). Depending how you count) this is the third or fourth time that the Bush Justice Department has sought to manipulate the Supreme Court’s jurisdiction over one or another detention-related issue, and that makes it doubly clear that the Court could, if it chose, hear the case even if it were otherwise moot.
If the court will not hear the appeal, there is an intermediate ground between hearing and simple rejection of the cert petition: the Court might grant the petition, recognize its mootness, and vacate the lower court decision. Certainly, both Padilla and the nation have an interest in seeing the 4th circuit decision at least vacated. In principle, the Supreme Court can, under the so-called Munsingwear doctrine, in which the the Supreme Court recognized the “established practice” of the federal appellate system “in dealing with a civil case from a federal court … which has become moot while on its way” to the appellate court “is to reverse or vacate the judgment below and remand with a direction to dismiss.
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The doctrine was restated in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), to emphasize that vacatur of a prior judgment is appropriate only when it is not the appellant’s fault that the case has become moot: “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” That describes Padilla’s position, but practice teaches us that the Supreme Court frequently does not grant cert in order to vacate lower court judgments when the facts have become moot, as the Munsingwear/US Mancorp doctrine applies with full force to appeals as of right, as opposed to discretionary grants of cert.
Padilla’s interest in having the lower court declared moot stems from the danger that some of it might be considered preclusive were he to later claim he was held illegally. The nation’s interest in review and/or vacatur stems from the horrible precedent that the case presents, truly a “principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” as my colleague Steve Vladeck noted (quoting Justice Jackson in dissent in Korematsu).
Turn now to the new indictment. If the Supreme Court grants cert, there’s a significant chance that the criminal proceeding might be stayed, but it’s far from certain as the new indictment is radically different from all that has gone before. It’s so different as to be quite weird on the facts, and radically weird on the law.
Let’s start with the factual allegations. Jack Balkin summed it up,
Originally the Justice Department claimed that Padilla had planned to detonate a “dirty bomb” (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today’s indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become “a violent jihadist” and that he had conspired to send “money, physical assets and new recruits” overseas to engage in acts of terrorism.”
Which brings us to jurisdiction. Padilla isn’t charged with doing anything illegal in the US, but rather planning to do things abroad that would be illegal here. If this indictment were a literary work instead of a serious indictment, we’d say it was doing more telling than showing. Indeed, the indictment doesn’t actually mention any specific act of violence nor any specific place it occurred or was intended to occur. Factually, it’s all rather vague (which is allowed at this stage; not all indictments have to be as detailed as Fitzgerald’s description of Libby’s misleading testimony). The jurisdictional basis for the indictment appears to be 18 USC 956, Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, and 18 USC 2339A, Providing material support to terrorists — in this case doing things, such as providing money, that would lead to a violation of sec. 956. While they have to spell out the crimes charged, indictments don’t have to fully describe the facts on which the government bases its allegations — that comes later. That said, the indictment does a good job of suggesting that the defendants knew each other and had a common purpose, but it is better at suggesting via lots of heavy breathing that they are Real Bad Guys than in actually demonstrating an evil act of which Padilla was actually a part other than going abroad to meet other Really Bad Guys: and indeed, it may be his crime, if indeed he committed one, was of intention rather than action. [Update: you can read more about the indictment in this post by Bobby Chesney at Opinio Juris.]
Finally, there is the small matter of venue. It is tempting to say that anything this weird finds its natural home in South Florida, and indeed the mind boggles a little at the legal circus we have in store some time in 2006 (currently scheduled for Sept. 2006, just in time for all of us to teach seminars about it), or fates preserve us, even later. But in fact, there is a method to the government’s madness here: Padilla has been added, via superseding indictment to an ongoing case based here in which other alleged members of the conspiracy were already charged. It may not be irrelevant that in U.S. District Judge Marcia G. Cooke, the government should not expect a hostile bench.
UPDATE: SD FLA Blog’s David Markus — who has first-hand experience and so is in a much better position to know — says that I’m wrong about Judge Cooke:
Froomkin (who I doubt has ever appeared before her) goes so far as to say “the government should not expect a hostile bench.” If this is what the government thought, it is dead wrong. Judge Cooke — to put it in Chief Justice Roberts’ words — calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike.
This is the sort of thing I’d be really happy to be dead wrong about. (I confess that the bit about her being Jeb Bush’s “former chief inspector general” suggested a certain frame of mind.)