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March 11, 2003


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 followed it.

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 603-05.

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.

On December 23, 2002, the government sent me a letter intended to "(1) update the Court on the parties' discussions about the consultation between Padilla and his counsel ordered in the December 4, 2002 Opinion; and (2) request a brief adjournment of the conference scheduled to take place on December 30." (Letter of Bruce to the Court of 12/23/02 ("12/23 Letter") at 1) That letter reported that, as directed in the Opinion, the parties had met "to discuss the conditions [Padilla's counsel] . . . are likely to propose." (Id.) I was told that "the parties are not near to agreeing on a set of conditions for the meeting, but it has been helpful to begin to discuss particulars." (Id.) The government informed me of its belief "as a result of hearing the defense proposals that it will be necessary, at a minimum, to present the Court and defense counsel with additional factual information to enable the Court to assess the feasibility of different conditions that may be proposed." The government disclosed also that it was "continuing to consider its position with respect to the consultation, including the possibility of requesting that the Court weigh additional information in reconsidering aspects of its December 4 Opinion." (Id.)

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 Padilla's case:

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.

Id. at 465.

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 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 ...

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