Jose Padilla Indicted, Transferred to DOJ Custody

Jose Padilla has been indicted and transferred to Justice Department custody, ending a three year detention by the Defense Department as an “enemy combatant.”

Dirty Bomb Suspect Jose Padilla Indicted – Yahoo! News

Jose Padilla, a U.S. citizen held for three years as an enemy combatant suspected of plotting a “dirty bomb” attack in this country, has been indicted on charges that he conspired to “murder, kidnap and maim” people overseas. A federal grand jury in Miami returned the indictment against Padilla and four others. While the charges allege Padilla was part of a U.S.-based terrorism conspiracy, they do not include the government’s earlier allegations that he planned to carry out attacks in America. “The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad,” Attorney General Alberto Gonzales said at a news conference in Washington. Gonzales declined to comment on why none of the allegations involving attacks in America were included in the indictment.

Padilla, a Brooklyn-born Muslim convert, has been held as an “enemy combatant” in Defense Department custody for more than three years. The Bush administration had resisted calls to charge and try him in civilian courts. With the indictment, Padilla will be transferred from military custody to the Justice Department. Gonzales said the case would go to trial in September of 2006. Padilla faces life in prison if convicted on the charges.

The indictment avoids a Supreme Court showdown over how long the government could hold a U.S. citizen without charges. The high court had been asked to decide when and for how long the government can jail Americans in military prisons. “They’re avoiding what the Supreme Court would say about American citizens. That’s an issue the administration did not want to face,” said Scott Silliman, a Duke University law professor who specializes in national security. “There’s no way that the Supreme Court would have ducked this issue.”

Agreed. This should have been resolved years ago.

Update: Orin Kerr weighs in on the mootness issue, which is under discussion in the comments here.

The timing presumably is no coincidence; the government’s response to Padilla’s petition for certiorari is due in six days, and the filing of the indictment gives DOJ what I would think is a strong argument that the issues raised are moot and the petition should be denied. Of course, you never know what will happen; the Bush Administration restructured the Guantanamo military tribunals in September in what appeared to be a partial response to the pending Hamdan petition, and the Court granted the petition anyway. For more on the impact of today’s indictment, see Lyle Denniston’s take over at SCOTUSblog.

Dennison offers this:

Padilla’s attorneys, however, are expected to contest [the mootness] argument, contending that the underlying issue of presidential power remains a live issue, a question capable of recurring in future cases. The case “is anything but moot,” said Jonathan M. Freiman of the New Haven law firm of Wiggin and Dana, one of Padilla’s attorneys. “The government still claims the power to seize American citizens in civilian settings in the United States and detain them in military prisons indefinitely and without charge. It claims that power over Padilla and it claims that power over every American citizen….It’s a classic case of capable of repetition yet evading review.”

Timothy Lynch, a criminal law expert at the Cato Institute, a libertarian organization in Washington that opposes the Bush Administration’s handling of “enemy combatants,” said in a statement that Tuesday’s indictment “is a clear indication that Mr. Bush’s legal team believe the Supreme Court would declare his ‘enemy combatant’ theory to be illegal. Mr. Padilla has been charged with a crime to keep this litigation away from the Supreme Court.”

It’ll be interesting to see how the argument unfolds. Politically, this is certainly a live issue; it’s anyone’s guess how the Court will view it legally.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Anderson says:

    So I’m asking everyone—will the Court hear the appeal anyway, because the administration continues to claim the power to detain U.S. citizens indefinitely without habeas, thus creating a classic “situation likely to recur” scenario?

    They can jail the next guy, hold him for 3 years and then suddenly indict him, etc., etc.

    Anyway, I’m glad Padilla’s indicted so we can focus on what an S.O.B. he apparently is, rather than using him as a poster child for our liberties. Bad plaintiffs make bad law?

  2. James Joyner says:

    Traditionally, these cases are moot and Padilla would no longer have standing since there is no case in controversy.

    There are workarounds to allow class action and other groups to sue but I don’t know the details. For example, they were finally able to get abortion cases heard at the Supreme Court even though the term of pregnancy had long expired.

  3. James Joyner says:

    More info from Wikipedia:

    Exceptions to mootness

    There are three major exceptions to this mootness rule. These are cases of “voluntary cessation” on the part of the defendant; questions that are “capable of repetition, yet evading review”; and questions involving class actions where the named party ceases to represent the class.

    Voluntary cessation

    Where a defendant is acting in a wrongful manner, but ceases to engage in such conduct once litigation has been threatened or commenced, the court will still not deem this correction to moot the case. Obviously, a party could stop acting improperly just long enough for the case to be dismissed, and then return to their previous ways. This exception has sometimes been stretched to an extreme – in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), the Supreme Court held that an industrial polluter against whom various deterrant civil penalties were being pursued could not claim that the case was moot, even though the polluter had ceased polluting, and had closed the factory responsible for the pollution complained of. The Court noted that the polluter still retained its license to operate such a factory, and could reopen similar operations elsewhere if not deterred by the fine sought.

    Capable of repetition, yet evading review

    A court will allow a case to go forward if it is the type for which persons will frequently be faced with a particular situation, but will likely cease to be in a position where the court can provide a remedy for them in the time that it takes for the justice system to address their situation. The most frequently cited example is the 1973 United States Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973), which challenged a Texas law forbidding abortion in most circumstances. The state argued that the case was moot because plaintiff Roe was no longer pregnant by the time the case was heard. As Justice Blackmun wrote in the majority opinion,

    …The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid.

    The Court cited Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), which had held that a case was not moot when it presented an issue that was “capable of repetition, yet evading review”. Perhaps in response to increasing workloads at all levels of the judiciary, the recent trend in the Supreme Court and other U.S. courts has been to construe this exception rather narrowly.

    Class action representatives

    Where a class action lawsuit is brought, with one named plaintiff actually representing the interests of many others, the case will not become moot even if the named plaintiff ceases to belong to the class that is seeking a remedy. In Sosna v. Iowa, 419 U.S. 393 (1975), the plaintiff represented a class that was challenging an Iowa law that required persons to reside there for a year before seeking a divorce in Iowa’s courts. The Supreme Court held that, although the plaintiff successfully divorced in another state, her attorneys could continue to competently advance the interests of other members of the class.

    Padilla’s case could theoretically go forward on any of those grounds.

  4. Anderson says:

    Man, the Wikifolk are almost scary sometimes. I keep meaning to look myself up on there, but I’m nervous what I might find out.

    The first ground seems to require identity of parties. Having indicted Padilla and transferred him to DOJ, I’m guessing his limbo is over, unless maybe the charges get dismissed and they stick him back in the cooler.

    The Roe-style case seems much more applicable. If the Court takes it, that will have to be its basis, I think. Padilla’s not a class representative, that I’ve heard of.

  5. M. Murcek says:

    Padilla may find out that being in US Military custody is safer than being part of the general population in the Federal correctional system…

  6. James Joyner says:


    Yep, I actually stumbled on the Wiki entry doing a Google search on “moot and ‘case in controversy’ exception.”

    Agreed on the particulars. I’m just suggesting that rationales along those lines could be crafted. Perhaps someone else could glom onto the existing Padilla case as a class action, for example.

    The issue of whether an American citizen can be held indefinitely is certainly ripe for judicial ruling.