Rumsfeld v. Padilla

Though the Padilla case seemed to be the one where the government’s enemy combatant policy faced the most certain defeat, the Court decided to put that battle off to another day. It ruled 5-4 that Padilla’s habeas corpus petition was misfiled: Rather than filing in the Southern District of New York, where Padilla was initially held on a material witness warrant and had a court-appointed attorney, the petition should have been filed in the South Carolina District, where Padilla has been held for the past two years. The Court ruled that the petition should have been filed against Commander Melanie Marr, who is his immediate jailer, rather than the Secretary of Defense.

This opinion, then, like the Rasul opinion, hangs on issues of jurisdiction, and makes an interesting counterpoint to Rasul. In Rasul the Court held that the Guantanamo detainees, who are being held in a prison outside of the territory of any federal court district, could file habeas petitions in a district that had jurisdiction over those responsible for their detention – President Bush, in that case. Rasul provides an extraordinary process for filing a habeas corpus petition, because the detainees are in a situation where the ordinary process does not work. In Padilla, by contrast, the Court holds that when the ordinary process works, you have to use it. Padilla is being held in South Carolina in a military brig whose commander is also in South Carolina, so the proper course is to file the habeas petition against his “immediate custodian” (the brig commander) in the District of South Carolina. As the Court’s 44-page decision states:

Although Padilla's detention is unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive. His detention is thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule.

History of the Case

Writing the majority opinion (and speaking for Justices O’Connor, Scalia, Kennedy and Thomas), Chief Justice Rehnquist summarized the history as follows:

On May 8, 2002, Padilla flew from Pakistan to Chicago's O'Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal custody. On May 22, acting through appointed counsel, Padilla moved to vacate the material witness warrant.

Padilla's motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an "enemy combatant" and directing the Secretary to detain him in military custody. In support of this action, the President invoked his authority as Commander in Chief of the U. S. armed forces and the Authorization for Use of Military Force Joint Resolution enacted by Congress on September 18, 2001. The President also made several factual findings explaining his decision to designate Padilla an enemy combatant. Based on these findings, the President concluded that it is "consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant."

That same day, Padilla was taken into custody by Department of Defense officials and transported to the Consolidated Naval Brig in Charleston, South Carolina. He has been held there ever since.

On June 11, Padilla's counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition.

Games Lawyers Play

Reading between the lines, we see a certain amount of gamesmanship between the government and Padilla’s court-appointed lawyer, Donna Newman. Material witness warrants are intended to do exactly what the name suggests: prevent a witness from fleeing before a court can hear his evidence. Originally they applied only to witnesses in criminal trials, and were later extended to apply to witnesses in grand jury investigations. These warrants are easy to get, because the government doesn’t have to claim that the subject committed a crime, only that he might know something relevant to an ongoing investigation.

Post 9/11, the government has been abusing material witness warrants to hold suspicious people without filing charges. The so-called “witness” is never called to testify, and so remains in custody until his lawyer can convince a judge to put an end to the charade. In Padilla’s case, he sat in a New York jail for a month without testifying to anybody, and his motion for release was still pending. (Justice Stevens’ dissenting opinion adds the following details: Padilla’s motion was scheduled to be heard on Tuesday June 11, 2002. He was transferred to South Carolina on Sunday, June 9 without his lawyer receiving any warning.) Facing Padilla’s imminent release from the material witness warrant, President Bush declares Padilla an “enemy combatant” and transfers him to a military brig in South Carolina. South Carolina is known to be a district in which the judges are more conservative, and so less likely than New York’s judges to be friendly to Padilla’s case. Padilla’s lawyer realizes this as well, and so files the habeas corpus petition in New York.

This is known as “forum shopping” – trying to pick a court that will be sympathetic to your case. Both the government and Padilla’s lawyer were doing it. The Supreme Court frowns on this practice, because it implies that justice varies from one court to another. The polite fiction of the legal system is that each federal court is a perfect franchise of the Supreme Court. French fries are supposed to be just as crisp and salty at any McDonalds, communion is supposed to be equally effective at any Catholic church, and habeas corpus petitions are supposed to be heard exactly the same way in any federal court. But in fact, the only reason that the Supreme Court cares about enforcing the jurisdiction rule is that justice does vary. If people could file habeas petitions wherever they wanted, some district would get a reputation as a soft touch, and everyone would file there.

[The immediate custodian] rule, derived from the terms of the habeas statute, serves the important purpose of preventing forum shopping by habeas petitioners. Without it, a prisoner could name a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm jurisdiction. The result would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.

But if the law is as clear as Justice Rehnquist makes it sound, why is this a 5-4 decision? (And why, we might wonder, do the justices line up the same way they did in Bush v. Gore? I don’t have a good answer for that one.) One answer is implied by the concurring opinion of Justice Kennedy (writing for Justice O’Connor as well as himself). Kennedy would allow some rule-stretching if he thought it necessary to prevent gamesmanship by the government.

I would acknowledge an exception if there is an indication that the Government's purpose in removing a prisoner were to make it difficult for his lawyer to know where the habeas petition should be filed, or where the Government was not forthcoming with respect to the identity of the custodian and the place of detention. In cases of that sort, habeas jurisdiction would be in the district court from whose territory the petitioner had been removed. In this case, if the Government had removed Padilla from the Southern District of New York but refused to tell his lawyer where he had been taken, the District Court would have had jurisdiction over the petition. Or, if the Government did inform the lawyer where a prisoner was being taken but kept moving him so a filing could not catch up to the prisoner, again, in my view, habeas jurisdiction would lie in the district or districts from which he had been removed. ... None of the exceptions apply here.

Kennedy goes on to defend the government against a charge of forum-shopping:

Both Padilla's change in location and his change of custodian reflected a change in the Government's rationale for detaining him. He ceased to be held under the authority of the criminal justice system ... and began to be held under that of the military detention system. Rather than being designed to play games with forums, the Government's removal of Padilla reflected the change in the theory on which it was holding him.

The Dissenting View

Justice Stevens, writing a dissenting opinion for Justices Breyer, Ginsberg, and Souter, has a different view. He believes (as I do) that the issues in the Padilla case are too important to get sidetracked by the federal court system’s housekeeping rules.

The petition for a writ of habeas corpus filed in this case raises questions of profound importance to the Nation. The arguments set forth by the Court do not justify avoidance of our duty to answer those questions.

In Stevens’ opinion, this “profound importance to the Nation” justifies giving Padilla’s lawyer the following benefit of the doubt:

if the Government had given Newman ... notice of its intent to ask the District Court to vacate the outstanding material witness warrant and transfer custody to the Department of Defense, Newman would have filed the habeas petition then and there, rather than waiting two days. Under that scenario, respondent's immediate custodian would then have been physically present in the Southern District of New York carrying out orders of the Secretary of Defense. Surely at that time Secretary Rumsfeld, rather than the lesser official who placed the handcuffs on petitioner, would have been the proper person to name as a respondent to that petition. ... The difference between that scenario and the secret transfer that actually occurred should not affect our decision, for we should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding. The departure from the time-honored practice of giving one's adversary fair notice of an intent to present an important motion to the court justifies treating the habeas application as the functional equivalent of one filed two days earlier.

Stevens goes on to defend New York as the proper venue:

When this case is analyzed under those traditional venue principles, it is evident that the Southern District of New York, not South Carolina, is the more appropriate place to litigate respondent's petition. The Government sought a material witness warrant for respondent's detention in the Southern District, indicating that it would be convenient for its attorneys to litigate in that forum. As a result of the Government's initial forum selection, the District Judge and counsel in the Southern District were familiar with the legal and factual issues surrounding respondent's detention both before and after he was transferred to the Defense Department's custody. Accordingly, fairness and efficiency counsel in favor of preserving venue in the Southern District. In sum, respondent properly filed his petition against Secretary Rumsfeld in the Southern District of New York.

By referring to the government’s “selection” of New York as a venue, Stevens implicitly condemns the abuse of a material witness warrant. If the warrant were actually for the stated purpose of getting Padilla’s testimony before a grand jury, the appropriate grand jury is the one investigating the 9/11 attack in New York. But if the purpose was just to get Padilla into custody, then one grand jury is as good as another; the government could have selected any venue.

The overall subtext of Stevens’ opinion is: Where there’s a will, there’s a way. If the Court wants to hear Padilla’s case, excuses can be found for the technical problems in his petition. Stevens has the will.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

What Happens to Padilla Now?

He remains in the brig in South Carolina, and his legal process starts over. Presumably his lawyer immediately filed a habeas corpus petition in the South Carolina District, which will now start working its way back up to the Supreme Court.

However, this time around Padilla benefits from the Court’s simultaneous decision in Hamdi v. Rumsfeld. The Hamdi case established that American citizens detained as enemy combatants are entitled to a chance to dispute the facts of their case in front of a neutral decisionmaker – possibly a judge, but at the very worst a military tribunal operating under certain basic rules of due process and subject to the oversight of a court. The Hamdi case also established Padilla’s right to meet with a lawyer. Many of the procedural issues that have dogged this case have been settled or at least simplified by the Hamdi decision.

Also, the government can count noses, and has reason to worry that Padilla will be set free if the Court ever hears the merits of his case. Four justices (Stevens, Scalia, Souter, and Ginsberg) favored freeing Hamdi unless the government was ready to charge him with treason and try the case in the regular court system. Everything they said about Hamdi applies equally, if not moreso, to Padilla. The four justices represented by O’Connor’s opinion in the Hamdi case (O’Connor, Kennedy, Rehnquist, and Breyer) stressed the significance of Hamdi being captured on a battlefield and held “according to the laws of war.” Padilla’s arrest on uncontested American soil, under the suspicion that he intended to commit acts of terrorism, is not covered by the O’Connor opinion. Justice Thomas’ reasoning in the Hamdi case applies to Padilla also, but he is the only vote the government can count on at this point. If any of the four O’Connor justices looks more favorably on the facts of Padilla’s case than Hamdi’s, he’ll go free.

The government has two reasonable strategies: They can accept that ultimately Padilla will be set free, but drag the case out as long possible; or they can set up a more defensible process in which to establish Padilla’s guilt. In the long run, the government has to put up or shut up – and that’s good news for all of us who value our freedom.

Doug Muder

4 July 2004

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