Amicus fight

Professor Ricardo Bascuas, on behalf of NACDL, FACDL-Miami, and NAFD, authored an amicus brief in the Cuban Spy case, in support of the panel's determination that venue was improper. Typically these briefs are filed with the consent of both parties. In this case, however, the government has opposed the filing of the brief, making some unbelievable claims. For one, it claims that it's not fair because it doesn't have enough space to respond to the arguments raised by amici -- it even takes a shot at the panel saying that the panel used more words than were given to the government in its brief. In the same breath, it also says that the arguments raised by amici are not relevant. Finally, it asserts that the brief is "partisan." I have never seen the government take such an odd position. Amicus briefs are filed by organizations that have a unique perspective on the subject being debated in court. Of course they have a position. And if the arguments raised aren't relevant, why does the government have to waste any of its space addressing them? In the interest of disclosure, I am NACDL's vice chair of the amicus committee for the 11th circuit and I signed the brief on behalf of NACDL.

Padilla moves

Lots of moves in the Padilla case. The Bushies asked the Supreme Court to order the transfer of Padilla to FDC-Miami to face the indictment filed last month. Lyle Deniston has a lot of great things to say on the subject. Here's his intro:

The Bush Administration, protesting that the Fourth Circuit Court has engaged in an "unprecedented and unfounded assertion of judicial authority," on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison. The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made "an unwarranted attack on the exercise of Executive discretion," raising "profound separation-of-powers concerns" if not remedied swiftly. "The Fourth Circuit's order defies both law and logic," the new filing contended. Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla's case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla's pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla's placement, and thus Clement turned to the Justices seeking what the lower court had denied.

Before this latest move, the Herald's Jay Weaver had this coverage of all the latest wrangling. And TalkLeft opines that Padilla's lawyers slap Bush Administration. The Daily Business Review (Julie Kay) had a piece about Padilla's and Hassoun's co-defendant, Kifah Jayyousi, but there is no public link available to review the article. Finally Brian Tannebaum has this to say about criminal defense lawyers in these sorts of cases.

The Southern District of Florida finds itself in the middle of this historic fight between the branches of government.

Justice Cantero still a possibility?

A reader sent this email:

"Possible grist for your blog, but PLEASE KEEP MY IDENTITY ANONYMOUS IF YOU CHOOSE TO USE THIS IN ANY WAY....A few months back, I heard it from a well-placed source that the current Administration is looking for a way to get Raoul Cantero on the 11th Circuit. They are practically counting the days until Judge Barkett is eligible to take senior status, figuring that will give them a "Florida seat" to fill with Cantero. I've also heard that Cantero (like many Florida Supreme Court Justices) would prefer not to live in Tallahassee forever, so he'd be game. Now another possibility may have arisen -- this week Congress returned the nomination of Brett Kavanaugh to the DC Circuit (he's a darling of the Federalist Society right wingers), signaling that his re-nomination (if it occurs in 2006) would be a complete war. One piece of scuttlebut is that that Cantero could be considered for that open seat on the DC Circuit. If so, and if he makes it to the DC Circuit, his age & ethnicity would automatically jump him into the very top tier of any Supreme Court shortlist for the next vacancy. We might just get a Floridian in the Big House yet...."

A couple thoughts -- 1) I hope Judge Barkett doesn't take senior status any time soon. 2) I don't think Judge Cantero would be as conservative as the right hopes. I think the former Judge Davis' clerk would call it right down the middle. 3) Hope everyone had a nice holiday weekend.

Happy Festivus

... for the rest of us.

Padilla staying put

Unbelievable. Judge Luttig, one of the judges on Bush's short list for the U.S. Supreme Court, just gave the back of his hand to Bush's legal strategy on the war on terror, ruling that Padilla will not be transferred to the Southern District of Florida and that the Fourth Circuit opinion will remain intact -- teeing the case up for Supreme Court review.
Lyle Denniston, over at ScotusBlog, has great coverage of this remarkable decision. Here's his intro:

In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts. The language used in the opinion --
reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review
of the Fourth Circuit's Sept. 9 ruling. Judge Luttig, writing for a three-judge Fourth Circuit panel, said "we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." In addition, Luttig said: "We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."