by Matt Barr

Why stay the Padilla order?

Lyle Denniston and Marty Lederman at SCOTUSblog are discussing the government's motion to stay the order requiring it to release or charge Jose Padilla in civilian court within 45 days. Lederman wonders aloud:

First, DOJ argues (p.5) that "[Padilla's military (as opposed to civilian) detention is 'necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens'" (quoting the President's order). This seems to be saying that in civilian detention (but not in military detention), Padilla would somehow be able to aid al Qaeda. How's that? No explanation for this strange assertion is forthcoming.

As I argued here, it's that Padilla could talk to his lawyer.

In passing, the motion states (p.6) that "there are significant differences between military and civilian custody, especially from the government’s standpoint." But the motion does not even identify what those differences are, let alone why they might justify a stay of the Government's ability to detain Padilla in military (as opposed to civilian) custody after April 14th.

Interrogation without a lawyer, and without recourse to the Fifth Amendment.

You would hardly expect to see the government say so in a public filing, but I'm sure the court knows what's going on (and, as demonstrated by Judge Floyd, while not countenancing it, will not necessarily be candid about it itself).

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