Supreme Court Grants Padilla Transfer

by Roger Alford

The Supreme Court has granted the U.S. government’s request to transfer Padilla to civilian custody in Miami. The one-page order is here. The key language is the following:

“The Solicitor General has now filed with this Court an Application Respecting Custody and Transfer of Jose Padilla, seeking the same authorization previously sought from the Court of Appeals. Padilla has filed a response, arguing instead that the Court should delay his release from military custody and consider his release along with his petition for certiorari. The Government’s application presented to the Chief Justice and by him referred to the Court is granted. The Court will consider the pending petition for certiorari in due course.”

Scotusblog has the best coverage of the developments. For its discussion on the Government’s Reply Brief, see here, Padilla’s Brief, see here, the Government’s Brief, see here, the Fourth Circuit Order see here, and commentary here, here, and here.

It has struck me all along that the Fourth Circuit’s order denying transfer and the subsequent breathless commentary about the Government’s “manipulations,” the “remarkable” rebuke by the Fourth Circuit, and the “collision” over “inherent powers” was a bit overblown. The key concern of the Fourth Circuit was that the question of Padilla’s transfer is best reserved for decision by the Supreme Court. The Supreme Court has now made its decision authorizing transfer. The only sign that the Court treated this matter with a greater sense of importance is the slightly longer length of the order and the referral of the question from the Chief Justice to the full Court.

We are talking, after all, essentially about a simple question of mootness. If the body has been produced and transferred, it would seem a habeas corpus petition is in serious jeapordy of mootness. The Supreme Court ruling suggests that the Court need not deny a transfer both parties desperately want simply to preserve the possibility of a claim on appeal. That would be an attempt by the judicial branch to create facts to affirmatively prevent mootness. As the Government reply brief put it, “A citizen remains detained in military custody as a result of the order of the court, not of a military officer or the President.” We already have a rather pedestrian mootness doctrine that addresses the fundamental concerns underlying this transfer: capable of repetition yet evading review.

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