The Fourth Circuit, per Judge Luttig, just issued its opinion in Padilla v. Hanft, reversing a district court that had ordered the government to charge Jose Padilla with a crime or to release him. I may post more after I've found the opinion and read it.
UPDATE: Here is the opinion.
UPDATE 2: It's hard to say much about the opinion at first glance, due to the procedural posture and the effects thereof. Padilla brought a summary judgment motion challenging the government's lack of power to detain him as an enemy combatant. He therefore had to concede the government's version of the facts for the purposes of the motion, which meant that the Fourth Circuit could proceed as if it were established that Padilla had associated with Al Qaeda, received weapons training, met with Khalid Sheikh Mohammed, and plotted death and destruction for the United States. Given those concessions (again, only for the purposes of the motion), it's hard to see how Padilla could have won the motion.
Ex Parte Quirin, 317 U.S. 1 (1942), involved in part a U.S. citizen who was a German soldier/saboteur captured inside the country; the Court concluded that the laws of war applied to him, and that as an unlawful combatant, he was subject to military trial. This is a pretty strong precedent that the laws of war would apply to Padilla even though he was arrested in the U.S. given the concession that he was part of Al Qaeda and sought to attack the U.S.
Most of Padilla's other arguments were more or less blocked by the Supreme Court's decision in Hamdi v. Rumsfeld. So ultimately I am left wondering why Padilla went for the equivalent of the frontal assault (i.e., challenging the substantive basis of his detention) rather than the easier approach of arguing that he was entitled to a hearing before a neutral decisionmaker in which to challenge his classification as an enemy combatant. After all, Hamdi provided ample precedent for the latter argument, and to the extent the locus of capture matters (the 4th Circuit thought it did not), Padilla has an even stronger claim to a hearing than Hamdi did.
One possibility is that Padilla's lawyers believe that they could not have prevailed in such a hearing, particularly given Justice O'Connor's ruminati0n (for herself and three other Justices) that perhaps there could even be a presumption in favor of the government in such a hearing. On the other hand, if Padilla won the argument that the government could not detain him as an enemy combatant, leaving him to face criminal charges, the lawyers might have thought that he could establish reasonable doubt.
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