On Friday, December 16, 2005, the Center for Constitutional Rights filed amicus briefs before both the United States Supreme Court and the Fourth Circuit in support of Jose Padilla, the U.S. citizen who was held until recently as an enemy combatant by the Bush Administration. CCR’s briefs argue that the federal courts should not allow the government to evade judicial review of Padilla’s unconstitutional military detention by issuing an indictment at the last minute, and that the Supreme Court should hear Padilla’s challenge to the very idea that he may be detained as an “enemy combatant” even if he is soon released from such military detention.
The story of Padilla's incarceration is a long and complicated one. After being arrested on U.S. soil when he returned from a trip abroad, Padilla was held without access to an attorney for months by the Bush Administration. When his case finally appeared before the Supreme Court, it was rejected based on a technicality.
 
After the Supreme Court decision, in which CCR filed an amicus brief, Padilla's lawyers (who by now were allowed to meet with their client) filed a new habeas petition in the federal district court in South Carolina. The District Court agreed with the dissenters in the Supreme Court, holding that Padilla was entitled to be charged or released within 45 days.
 
During the post-Supreme Court proceedings, the government alleged that Padilla carried a weapon while fleeing the advancing U.S. and allied forces during the war in Afghanistan in 2002. These allegations were in addition to the allegations made in press conferences (by John Ashcroft and James Comey, respectively) that Padilla was plotting to set off a radioactive dirty bomb in the United States, and plotting to destroy apartment towers with gas explosions.
 
Because it was now alleged that Padilla had borne arms during the Afghanistan conflict, the government argued that that there was nothing to distinguish Padilla from Yaser Hamdi, the other citizen indefinitely detained by the military after 9/11, who had allegedly fought with Taliban forces against forces allied with the U.S. The fact that Padilla was arrested within the United States made no difference, the government argued. A three-judge panel of the Court of Appeals for the Fourth Circuit, the nation's most conservative appeals court, agreed, and overruled the district court's order.
 
Rather than seek review from the full Fourth Circuit, Padilla's attorneys decided to appeal directly to the Supreme Court. The government, realizing it was unlikely to prevail in the Supreme Court, indicted Padilla on federal criminal charges in Florida just days before its response was due to the Supreme Court, and asked the Fourth Circuit panel for permission to move Padilla from military detention to civilian criminal detention in Florida. At the same time, President Bush issued an order allowing the Secretary of Defense to hand Padilla over to the Attorney General for prosecution.
 
Padilla's lawyers welcomed this move, since it would free their client from his onerous military detention, make it easier for them to meet with him and also because Padilla would at last have an opportunity to defend himself against actual charges. The indictment's charges were nowhere near as serious as the allegations made by Comey and Ashcroft, mainly revolving around allegations that Padilla's met with individuals associated with overseas groups alleged to be involved in violence overseas, and provided support to those groups. Nothing in the indictment related to "dirty bombs," blowing up high rises, or domestic terrorism at all.
 
However, the judges on the Fourth Circuit panel refused to transfer Padilla to civilian custody, and instead issued an order demanding additional briefing from the parties, asking if the case would become moot if Padilla were transferred, and demanding an explanation from the government for the differences between the serious terrorism allegations against Padilla originally presented to them and the far weaker counts of the indictment.
 
The government is undoubtedly planning to argue -- to both the Fourth Circuit and the Supreme Court -- that Padilla's detention and transfer leaves his challenge to his military detention moot. Since he will no longer be in military detention, they argue, he has nothing left to complain of. CCR's amicus briefs to both courts argue that the case is not moot. First of all, Padilla has not yet been transferred out of the military prison (because of the Fourth Circuit order). Even assuming he eventually is, nothing in the President's order authorizing his transfer indicates that Padilla is no longer an "enemy combatant." There is no indication that the government cannot simply send Padilla to military detention again as an enemy combatant if the civilian criminal trial goes badly or if Padilla is acquitted of the charges against him. CCR's briefs argue that the federal courts should not allow the government to evade judicial review of Padilla's unconstitutional military detention by issuing an indictment at the last minute, and that the Supreme Court should hear Padilla's challenge to the very idea that he may be detained as an "enemy combatant" even if he is soon released from such military detention.