Supreme Court Allows Transfer of Padilla to Miami for Criminal Prosecution:

CNN reports:

The Supreme Court agreed Wednesday to allow the transfer of accused "enemy combatant" Jose Padilla to Miami to face criminal charges.

The justices overruled [the Fourth Circuit], which had attempted to block the transfer.

The high court said it would decide later whether to review Padilla's challenge to his military detention. It granted the Bush administration's request for a transfer in a terse, single page order. . . .

18 USC 1030 (mail):
Prof. Volokh, the link isn't working but this one should Padilla ordered to civilian custody

If they allow the transfer, wouldn't they almost have to approve of the military detention? If they rule against the military detention, wouldn't that necesitate the release from civilian custody as a direct causation of the military detention. It is my understanding that he was transfered from military to civilian custody, wouldn't this bring both issues as to his imprisonment (as a civilian) and any and all evidence obtained whilst he was in military custody?

Should he have been released as not being a risk in the sense of a combatant, and then arressted as a citizen in violation of civilian law?

I don't know the answers but it seems like a question needing thought...
1.4.2006 5:06pm
AJStrata (mail) (www):
About time.
1.4.2006 5:18pm
Owen Hutchins (mail):
It seems to me that they can approve the transfer and still rule against the government on the military detention issue. After all, civilian charges are what the defense wanted; they only balked when the government did this because they do not want the government to get out of having to answer for the military detention, which is what the government asked for when they asked the court to declare the point moot. If the court does not review, then the government will assert that they have the power to detain citizens indefinitely, and simply release them to civilian control if and only if any future court case might go against them, in order to avoid having it ruled upon.
1.4.2006 5:22pm
Anderson (mail) (www):
Aaaaugh! I was just blogging this. SCOTUS did not "overrule" the Fourth Circuit.

Anyone who cares can read what I wrote about it. Bottom line, the 4th said "we shouldn't decide this, SCOTUS should." And SCOTUS did. That is not "overruling."
1.4.2006 5:24pm
Justin (mail):
I predicted this.

I disagree with Anderson's reading of the 4th Circuit case, which certainly had some "merits" feel, with Luttig apparently pissed off that the government would avoid review after several years this way. While there's a technical "pontus pilate" washing of the hands saying the Supreme Court would be the ones that would have to grant the government's relief, I'm skeptical that this doesn't make it an overturning. Heck, its an overturning when a 3 judge panel feels constrained by a previous decision of the circuit (or the supreme court) and gets reversed by the Supreme Court (either reversing its own predent or determining the original panel's decision in error).
1.4.2006 6:19pm
Anderson (mail) (www):
Justin, Rule 36 lets either the appeals court or the Supreme Court allow the transfer.

The SCOTUS order says "The Fourth Circuit denied the request, citing a concern that transfer might affect this Court's consideration of the pending petition for certiorari and concluding that the 'decision should be made not by this court but, rather, by the Supreme Court of the United States.'"

As I said in my blog post, it's like asking Dad and being told "go ask Mom." Mom has not "overruled" Dad if she says yes or no.
1.4.2006 6:25pm
Anderson (mail) (www):
Okay, was that an atheist or a theist who hijacked this site &put an Xmas ornament of an angel at top right?

(Y'all are seeing this too, right? Right, guys?)
1.4.2006 6:38pm
Pooh (www):
Does this mean that SCOTUS will moot the case? If so what does that mean for the original 4th circuit decision as precedent?

Does this provide any clue as to how they might dispose of the case on the merits? I'm at sea with what this transfer means...
1.4.2006 6:43pm
Pooh (www):
I see it too. Odd, very odd.
1.4.2006 6:44pm
Anderson (mail) (www):
Pooh, see the link to Denniston at SCOTUSBlog in my 6:25 comment (says "order" but I linked to his post). He doesn't see any signalling &neither do I. As he notes, the Court mentioned that Padilla himself agreed with the transfer before the 4th Circuit. It's after Luttig's order came down that Padilla's lawyers changed tactics.

Glad that I'm not the only one with angelic visions. I'd blame Pajamas Media, but John Cole &OTB are free from supernatural manifestations.

Obviously, the case for unbelief has taken a serious hit.
1.4.2006 6:48pm
Wintermute (www):
Yeah, the angel's kinda cute, too .
1.4.2006 6:48pm
Justin (mail):
You should actually read the 4th Circuit order (not sure if the "opinion" was rendered orally by Judge Luttig or in writing, rather than simply relying on the SCOTUS statement itself, which is a technically accurate but unimportant description.
1.4.2006 7:26pm
John Jenkins (mail):
I'm really glad I'm not the only person seeing the strange template. Anyone want to start a book on whether the Supremes now find the earlier case moot and pass on deciding the detention issue?
1.4.2006 7:40pm
Defending the Indefensible:

Rule 36 just says the appeals court "may" allow the transfer, which equally means that it "may not." But SCOTUS has equal power. It's not like Dad says no and you ask Mom so that Mom "overrules" Dad. In fact, the situation here is Dad saying "go ask Mom":

LOL. Perfect, and precise.
1.4.2006 7:51pm
Noah Klein (mail):

I also have seen that angel it is really weird.

AJStrata: This is the first time I have ever seen someone who supports the administration praise the release of an accused terrorist. The issue I think in the Padilla case is can the government declare a person an enemy combatant and jail him/her indefinately.

I think SCOTUS has to rule on this case, because the Hamdi decision asserted that no matter what an American citizen has the right to habeas corpus and a review by an independent judiciary. If they do not grant cert., then you have a strange occurance where if a citizen is captured on the battlefield can get a review of his/her case, but not a citizen captured in America.

G-d bless you,
1.4.2006 7:51pm

It's really depressing that Bush is getting away with this.
1.4.2006 9:03pm
Anderson (mail) (www):
--Justin, I did read the order by Luttig, with astonishment &glee, but maybe you should cite the portion you have in mind, rather than the portion the Supreme Court appears to have focused on?

--Thanks, DTI.
1.4.2006 11:05pm
John Jenkins (mail):
Dave, getting away with what? Padilla wants his day in court. He's getting it. The government probably decided that this wasn't the best case to try these issues. It happens all the time. (What, you think there weren't other school boards besides the one in Topeka Kansas who could have been sued?)
1.5.2006 12:22am
JJ, see the Luttig opinion.
1.5.2006 8:28am
Justin (mail):

My apologies. I haven't read it since it came out, and so I was too lazy to cite the portions. Obviously, I'm talking about the portions cited by Professor Kerr here:
1.5.2006 11:45am
Anderson (mail) (www):
Right, Luttig railed on the feds (deservedly, IMHO). But that's dicta.

Basically, the substance was "we're afraid you're trying to pull a fast one on the Supremes, so if you want this relief, you're going to have to go get it from them." While putting on the record a strong statement that it would look Very, Very Weird for the Court to ignore in whatever decision it reaches.
1.5.2006 12:23pm