The Bush Administration late Friday afternoon urged the Supreme Court to deny review of the challenge by Jose Padilla to his designation as an "enemy combatant" in the war on terrorism, arguing that the case is now moot. "The predicate for this habeas action...no longer exists" because Padilla has now been charged with crime in civilian court, and ordered released from military custody, the brief contended. (The text of the government's 30-page brief can be found at the link provided in the post just below. The attempt by Padilla's lawyers to keep the case alive through action in the Fourth Circuit is discussed in the post further below.)
If this were the case in terms of matter of law, it seems clear that the Supreme Court would have little choice but to deny review, for the issue that they have been asked to take up is no longer a circumstance, but as SCOTUSBlog noted previously, this is not the case.
For the time being, however, Padilla is both an "enemy combatant" and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: "A senior attorney at the Solicitor General's Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him."
On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would "supersede" his earlier order designating Padilla an "enemy combatant" and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla's custodian. In fact, another of Padilla's lawyers, Michael P. O'Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order "does not remove the designation of 'enemy combatant' that the President placed upon Mr. Padilla..." And O'Connell said that "the government continues to assert the authority to return Mr. Padilla to military custody."
O'Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: "Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed" until the Supreme Court acts on Padilla's appeal to the Justices.
The legal uncertainty, of course, is pervasive, and remains quite confusing.
It looks to me like a civilian Court ruling favorable to Mr. Padilla will prompt the Bush Administration to once again place him under military custody as an enemy combatant. The charges against him are not the same as the grounds argued by the Bush Administration for his detention previously demonstrating that the whole thing was bogus, not to say that he may not be involved with Al-Qaeda, but there is not way to know and the Bush Administration has now charged him with something totally unrelated to the argument they made for continuing to detain him. The Supreme Court must take this case in order to establish a definitive ruling against the enemy combatant determination for Amerian citizens on American soil. Without that ruling it looks apparent that a civilian exoneration of Padilla will prompt the Administration to detain him once more as an enemy combatant. The Bush Administration played this game before by moving Padilla's place of detention then arguing that Padilla's lawyers filed suit in the wrong district court, the Supreme Court cannot allow themselves to be fooled like that again.
---UPDATE---This case should henceforth be referred to as "Legal Dodgeball"
---UPDATE2---Cross Posted at DailyKos.