The opinion of the court was delivered by: Mukasey, District Judge
On December 4, 2002, this court issued an Opinion and Order (the
"Opinion") which held, among other things, that petitioner Jose Padilla
would be permitted to consult with counsel "in aid of his petition and,
in particular, in aid of responding to the Mobbs Declaration [which
described the factual basis for his detention] should he choose to do
so." Padilla ex rel. Newman v. Bush, 233 F. Supp.2d 564, 603 (S.D.N.Y.
2002). The Opinion gave the parties until December 30, 2002, to work out
by agreement the conditions for compliance with that holding, and stated
explicitly that if the parties could not agree, the court would impose
those conditions itself. Id. at 605, 610.
This case is now before the court on the government's motion to
reconsider that holding. For the reasons set forth below, the motion to
reconsider — although untimely and otherwise vulnerable to
objection — is granted. However, upon reconsideration, the holding
is adhered to.
The government's motion, filed January 9, 2003, is styled "Respondents'
Motion for Reconsideration In Part." It includes a sworn declaration,
described more fully below, setting forth facts in addition to those the
government submitted previously, said to bear on whether Padilla should
be permitted to consult with counsel. There is a local civil rule
applicable to motions for reargument or reconsideration. That rule
requires that such motions be made within ten days after determination of
the original motion, and bars affidavits unless authorized by the
court.*fn1 Because the
government's motion was filed more than a month
after the Opinion, and includes an affidavit without benefit of court order,
and because of the casuistry the government has employed in an effort to
justify its disregard of the cited rule, there is need to review both the
briefing that preceded the Opinion, and the procedural steps that
After the parties had submitted their initial briefs addressed to the
underlying petition, they submitted additional briefs, as the court
requested during a conference on October 21, 2002, addressing the
question of whether Padilla should be permitted to consult with counsel.
The government's arguments in opposition, as summarized in the Opinion,
were that such consultation would "jeopardize the two core purposes of
detaining enemy combatants — gathering intelligence about the
enemy, and preventing the detainee from aiding in any further attacks
against America." Padilla, 233 F. Supp.2d at 603 (quoting Respondents'
Resp. to This Ct's 10/21/02 Order at 6) (internal quotation marks
omitted). That is, consultation would interfere with questioning, and
present the opportunity to use counsel as intermediaries to send messages
to others. Id. Those arguments were answered in the Opinion. Id. at
The Opinion directed respondent Secretary of Defense Donald Rumsfeld to
let Padilla meet with counsel "for the purpose of submitting to the court
facts bearing upon his petition, under such conditions as the parties may
agree to, or, absent agreement, such conditions as the court may direct
so as to foreclose, so far as possible, the danger that Padilla will use
his attorneys for the purpose of conveying information to others." Id. at
605. The parties were directed to "discuss and arrange the conditions for
defense counsel's consultation with Padilla" and to attend a conference
on December 30, 2002, "to report on the results of those discussions and
arrangements." Id. at 610. Earlier, the Opinion had noted specifically
that the purpose for granting Padilla access to counsel was to permit him
to present facts to the court in connection with his petition; "no
general right to counsel in connection with questioning has been
hypothesized here, and thus the interference with interrogation would be
minimal or non-existent." Id. at 603.
The government noted as well the desirability of having its
deliberations completed by the time of the conference and the difficulty
of conducting those deliberations during the holiday season (id.), and
accordingly asked that the conference be adjourned "to either January
13th, 14th, or 15th, by which time we expect to have finalized the
Government's position and submitted materials in writing" (id. at 2). The
letter reported that Padilla's counsel had consented "to the request for
an adjournment" (id.), but failed to mention that Padilla's counsel had
not agreed to as long an adjournment as the government asked, or to any
further written submission.
Excluding the weekends after December 4, 2002, see Fed.R.Civ.P.
6(a),*fn2 the time for a motion to reargue or reconsider had expired by
the time the 12/23 Letter was submitted.
On December 24, 2002, the court issued an order adjourning the
conference to January 15 and giving the government until January 8 to
serve its "written submission." On January 8, the United States Court of
Appeals for the Fourth Circuit issued an opinion in Hamdi v. Rumsfeld,
316 F.3d 450 (4th Cir. 2003), and the government asked for a one-day
extension of the deadline for that "submission," which the court
granted. In that case, the Fourth Circuit treated a question certified
for appeal by the district court where Yaser Hamdi, an American citizen,
had filed a habeas corpus petition: "whether a declaration by a Special
Advisor to the Under Secretary of Defense for Policy[*fn3] setting forth
what the government contends were the circumstances of Hamdi's capture
was sufficient by itself to justify his detention." Id. at 459.
The Fourth Circuit was careful to limit its decision, discussed further
below, to the issues presented by the facts before it, and specifically
disavowed any intention to speak to the circumstances presented in
Given the concerns discussed in the preceding sections,
any broad or categorical holdings on enemy combatant
designations would be especially inappropriate. We
have no occasion, for example, to address the
designation as an enemy combatant of an American
citizen captured on American soil or the role that
counsel might play in such a proceeding. See, e.g.,
Padilla v. Bush, No. 02 Civ. 445 (MBM), 2002 WL
31718308 (S.D.N.Y. Dec. 4, 2002). We shall, in fact,
go no further in this case than the specific context
before us — that of the undisputed detention of a
citizen during a combat operation undertaken in a
foreign country and a determination by the
executive that the citizen was allied with enemy forces.
On January 9, the government made its "written submission," which
turned out to be a "Motion for Reconsideration In Part." The "part" of
the Opinion the government seeks to have reconsidered is the holding that
Padilla may confer with his lawyers in aid of submitting facts to the
court in support of his petition. Appended to the government's memorandum
in support of the motion is the declaration of Vice Admiral Lowell E.
Jacoby, Director of the Defense Intelligence Agency, sworn to January 9,
2003 ("Jacoby Declaration"), supplemented — as was the Mobbs
Declaration discussed in the Opinion — by a sealed version
containing additional details (the "Sealed Jacoby Declaration").
As set forth more fully below, the Jacoby Declaration sets forth the
factual predicate for one of the two government arguments advanced in
support of the motion for reconsideration. Those two arguments are (i)
permitting Padilla to consult with counsel could set back by months the
government's efforts to bring psychological pressure to bear upon Padilla
in an effort to interrogate him, and could compromise the government's
interrogation techniques; and (ii) in any event, consultation with
counsel is unnecessary in view of the level of proof fixed by the court
in the Opinion as the standard for deciding whether the government may
continue to hold Padilla without formal charges — "some evidence"
to justify the conclusion that he is an enemy combatant, Padilla,
233 F. Supp.2d at 608.*fn4
On January 13, Padilla responded to the government's motion by (i)
pointing out that it was filed past the deadline imposed by Local Civil
Rule 6.3, and violated that rule as well insofar as it included a sworn
statement — the Jacoby Declaration — submitted without court
permission, and (ii) disputing the two substantive arguments advanced in
the government's motion. On January 15, at the previously scheduled
conference, Deputy Solicitor General Paul D. Clement, representing the
government, (i) previewed arguments the government would later tease out
at greater length in its papers, to the effect that its submission did
not violate Local Civil Rule 6.3 (Tr. of 1/15/03 at 3), or came within
some fancied exception to it (id. at 5), and (ii) after being asked five
times whether the government had any facts to bring to the court's
attention in addition to those set forth in the Jacoby Declaration,
finally said no (id. at 6-7).
The parties were given additional time to brief the issues relating to
both the propriety of the government's motion under Local Civil
Rule 6.3, and the substance of the motion; that process is now complete.
The reasons for the rule should be apparent. The rule is designed to
avoid having a losing party delay resolution of the case, and burden the
court, by simply submitting new arguments and facts after its initial
submissions have proved inadequate. It is intended to "ensure the
finality of decisions and to prevent the practice
of a losing party
examining a decision and then plugging the gaps of a lost motion with
additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169,
170 (S.D.N.Y. 1988) (quoting Lewis v. New York Telephone, No. 83 Civ.
7129, 1986 WL 1441, at *1 (S.D.N.Y. Jan. 29, 1986)) (internal quotation
marks omitted); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995) (motion for reargument "will generally be denied unless
the moving party can point to controlling decisions or data that the
court overlooked — matters, in other words, that might reasonably
be expected to alter the conclusion reached by the court"); Primavera
Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party
may not "advance new facts, issues or arguments not previously presented
to the Court" (quoting Morse/Diesel, Inc. v. Fidelity & Deposit Co.
of Maryland, 768 F. Supp. 115, 116 (S.D.N.Y. 1986)) (internal quotation
The government advances essentially two arguments to defend the
propriety of its motion: that the motion is not covered by the rule, and
that the court and Padilla either invited or consented to the motion. As
to the first, the government seizes on the word "determination" in that
part of the rule directing that the motion be submitted within ten days
after docketing of "the court's determination of the original motion,"
and argues that there was no "determination" of the access to counsel
issue because details remained to be worked out as to how such access
would be had. (Respondent's Opp'n to Mot. to Strike at 2) No offense to
the principle ...