The 4th Circuit v. Mr. Bush
JUST WHEN it appeared the case of accused enemy combatant Jose Padilla couldn't get any weirder, the two parties have switched sides. In an emergency brief filed before the Supreme Court last week, the Justice Department asked the justices to step in and allow the government to transfer Mr. Padilla immediately from military to civilian custody so that he can face the criminal charges recently filed against him. This is the same Justice Department that had been arguing for 3 1/2 years that Mr. Padilla could be held without charge on President Bush's order as an al Qaeda fighter - for much of that time without even having access to his lawyers. Yet now, the department is pushing urgently for him to get what his lawyers have been fighting for since he got whisked out of the criminal justice system: to be able, like any other person accused of wrongdoing in this country, to contest the allegations in the regular criminal process.
Then on Friday came the response from Mr. Padilla's lawyers. Mr. Padilla, they say, "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. In other words, the government is now seeking to release Mr. Padilla from his legal limbo, and Mr. Padilla is objecting.
The reason for this impasse is a mischievous order recently handed down by the U.S. Court of Appeals for the 4th Circuit. Last year, the court upheld Mr. Padilla's detention by the military, ruling that the president has the authority to detain enemy combatants even if they are captured on American soil. But then, with the matter headed to the Supreme Court, the government brought its indictment and sought Mr. Padilla's transfer - an action probably motivated, at least in part, by a desire to keep the Supreme Court from granting Mr. Padilla's petition for review. The divided 4th Circuit panel treated this change of tactics as a kind of betrayal. Judge J. Michael Luttig wrote that the government's behavior has "given rise to at least an appearance that the purpose of [its] actions may be to avoid consideration of our decision by the Supreme Court." And though it was not clear as a legal matter that the court had any power to prevent Mr. Padilla's transfer, Judge Luttig denied the government permission to move the prisoner - the relief that Mr. Padilla has been seeking for years.
This puts both sides in an impossible bind. We have no brief for the government's conduct in this case, which has been lamentable from the beginning. But the order, as Solicitor General Paul D. Clement plaintively put it in his brief last week, "effectively transforms a ruling that the President may detain Padilla into a ruling that the President must detain Padilla militarily as an enemy combatant." One strains to recall another case in which the executive branch has been forced by the judiciary to detain someone against its will. That's not supposed to happen in the American system of government, and the Bush administration is rightly balking.
The ruling is also extremely awkward for Mr. Padilla. His lawyers argue with considerable force that even if he is transferred, the case will not be moot, and the Supreme Court ought to take it up. The government has not, after all, foresworn the possibility of sending Mr. Padilla back to military custody in the future should he be acquitted. Yet it's undeniable that the case for Supreme Court review is at least somewhat less powerful if the transfer takes place. So Mr. Padilla is forced to argue against the very transfer he has been seeking so as to preserve an advantageous procedural posture until Jan. 13, when the justices will consider whether to take the case up. The justices, in our view, need to unlink these two questions. The arguments for hearing the case are strong. But keeping a man locked up, even at his own request, so that his challenge to his detention remains viable, is no way to vindicate his rights. Mr. Padilla has been asking for years to face trial; the government has finally - belatedly - agreed. The Supreme Court should not let the 4th Circuit get in the way.