The case of Rumsfeld v. Padilla involves the detention without charge in a military prison of Jose Padilla, an American citizen suspected of having plotted with al Qaeda members to commit sabotage in the United States.  It asks whether the President has the unilateral power to detain indefinitely, without charge, an American citizen seized in a civilian setting in the United States.  Padilla raises important questions about the balance between national security and individual liberty and is arguably the most important case of its kind in more than fifty years.

Wiggin and Dana provides these materials as a public service, in light of its involvement in the briefing of this case before the Second Circuit and U.S. Supreme Court, and on remand in the District of South Carolina and the Fourth Circuit.

New Development
Padilla's Motion to Recall Mandate and Vacate Opinion - May 26, 2006
Government's Response to Motion to Recall and Vacate - June 12, 2006

Certiorari Denied
Judge Ginsberg's Dissent - April 3, 2006
Judge Kennedy's Concurrence  - April 3, 2006

Release From Military Custody
President's Memo - November 20, 2005*
Notice of Release and Transfer- November 22, 2005
Superseding Indictment of Nov. 2005 - November 17, 2005
Superseding Indictment of Sept. 2004 (for comparison)

*All documents in this section made public on November 22, 2005.

Supreme Court III: Petition for Certiorari
Order Granting Release from Military Custody - January 4, 2006
Government Reply on Application for Extraordinary Relief - January 3, 2006
Padilla's Response to Government Application for Extraordinary Relief - December 30, 2005
Government Application for Extraordinary Relief - December 28, 2005
Padilla's Petition for Certiorari - October 25, 2005
Government's Opposition to Certiorari - December 16, 2005
Padilla's Reply Brief - December 27, 2005
Supreme Court Docket (ongoing)

Amicus Briefs
Brennan Center & N.Y. City Bar - December 16, 2005
Comparative Law Scholars - December 16, 2005
Human Rights First - December 16, 2005
Law Enforcement Officials (Janet Reno et al) - December 15, 2005
Law Professors, CCR & NLG - December 16, 2005
National Association of Criminal Defense Lawyers- December 16, 2005
Original Congressional Sponsors of 4001(a) - December 16, 2005
Washington Legal Foundation - December 16, 2005

Fourth Circuit
Opinion and Party Briefs
Fourth Circuit Order - December 21, 2005
Padilla's Supplemental Brief - December 16, 2005
Government Supplemental Brief   - December 9, 2005
Order for Post-Decision Briefing on Vacatur - November 30, 2005
Fourth Circuit Opinion - September 9, 2005
Transcript of Oral Argument - July 19, 2005
Government's Reply Brief - June 21, 2005
Padilla's Brief - June 6, 2005
Government's Opening Brief - May 6, 2005
Joint Appendix (Part 1) - May 6, 2005
Joint Appendix (Part 2) - May 6, 2005

Amicus Briefs
Supplemental Amicus Brief of N.Y. City Bar & Brennan Center - Dec. 21, 2005

ACLU, NYCLU et al - June 14, 2005
Brennan Center for Justice - June 14, 2005
Center for National Security Studies and Constitution Project- June 15, 2005
Comparative Law Experts - June 13, 2005
Law Enforcement Officials - June 14, 2005
Louis Fisher (Author of Nazi Saboteurs on Trial)* - June 16, 2005
National Association of Criminal Defense Lawyers - June 13, 2005
Original Sponsors of 4001(a) - June 14, 2005
People for the American Way & Rutherford Institute - June 13, 2005
Professors, CCR & NLG* - June 17, 2005
Washington Legal Foundation - May 18, 2005

*Starred briefs were filed late and rejected by the Fourth Circuit.

Supreme Court II: Certiorari Before Judgment
Order on Cert Before Judgment- June 13, 2005
Padilla's Reply Brief  - May 17, 2005
Government's Opposition to Petition for Certiorari Before Judgment - May 9, 2005
Padilla's Petition for Certiorari Before Judgment - April 7, 2005

On Remand in South Carolina
Order Suspending Briefing- November 29, 2005
Motion for Stay (Amended)- November 28, 2005
Opinion Granting Padilla's Release - February 28, 2005
Transcript of Oral Argument - January 5, 2005
Padilla's Reply Brief on Summary Judgment - December 13, 2004
Government's Opposition to Summary Judgment - November 22, 2004
Padilla's Motion for Summary Judgment - October 20, 2004
Padilla's Reply to Government's Answer - September 10, 2004
Government's Answer to Padilla's Petition - August 30, 2004
Padilla's Petition For Writ Of Habeas Corpus - July 2, 2004
Full Docket

Supreme Court I: 2004
Opinion, Argument and Party Briefs on the Merits
Supreme Court Opinion  - June 28, 2004
Text Transcript for Padilla oral argument
Text transcript in Hamdi v. Rumsfeld oral argument
Government's Opening Merits Brief  - March 17, 2004
Padilla's Opening Merits Brief  - April 12, 2004
Government's Reply Merits Brie  - April 21, 2004
Joint Appendix - March 17, 2004
Padilla's Request for Permission to Lodge FBI Affidavit
Padilla's Motion For Divided Argument

Amicus Briefs in Support of Padilla:
ACL
Cato Institute
Center For National Securities Studies and The Constitution Project
Comparative Law Scholars
Fred Korematsu et al .
Global Rights  
International Law Professors
Janet Reno et al (Law Enforcement Brief )
Law of War Experts
Law Professors
Legal and Religious Organizations
Louis Henkin, Harold Koh, Michael Posner
National Association of Criminal Defense Lawyers
New York City Bar
Original Congressional Sponsors of 18 U.S.C. § 4001(A)
Others Are Us

Amicus Briefs in Support of the Government:
American Center For Law & Justice
Commonwealth of Virginia
Criminal Justice Legal Foundation
John Cornyn & Larry Craig Amicus Brief
Washington Legal Foundation

Supreme Court Docket.   The brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, March 17, 2004. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, April 12, 2004. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, April 21, 2004. SET FOR ARGUMENT WEDNESDAY, APRIL 28, 2004.

Certiorari Stage:
Government Petition for Writ of Certiorari and Government Motion to Expedite Consideration - January 16, 2004
Padilla Brief Opposing the Government's Petition - February 4, 2004
Government Reply - February 11, 2004 
Padilla Supplemental Brief - February 13, 2004 
Order Granting Cert - February 20, 2004

Second Circuit Activity

Argument and Decision:
Oral Argument Before the Second Circuit Court of Appeals
Second Circuit Decision in Padilla v. Rumsfeld  - December 18, 2003
Dissenting Opinion - December 18, 2003

Briefs for Padilla:
Opening - July 25, 2003  
Response - August 12, 2003  
Reply - September 2, 2003

Briefs for the Government:
Opening - July 22, 2003  
Response - August 12, 2003  
Reply - September 2, 2003

Amicus Briefs in Support of Padilla:
Cato Institute / Lawyers Committee for Human Rights  
ABA
ACLU 
Center for Constitutional Rights 
Experts on the Law of War
International Law Professors
National Association of Criminal Defense Lawyers
New York City Bar 
NY Council of Defense Lawyers
Public Defender Service for the District of Columbia
Retired Judges
Spartacist League 

Amicus Brief in Support of the Government:
Washington Legal Foundation

Joint Submissions to Second Circuit

Legislative History Submitted November 26, 2003
‹ 11/26/03 Letter to the Judges of the United States Court of Appeals for the 2d Circuit pursuant to 11/20/03 Order

Legislative History of 18 U.S.C. § 4001(a)
‹ Repeal of the Emergency Detention Act of 1950, Portions of H.R. Rep. No. 92-234 (1971) (TOC)
‹ Pub. L. No. 92-128, 85 Stat. 347 (1971)
‹ Prohibiting Detention Camps, H.R. No. 92-116 (1971)
‹ 117 Cong. Rec. H 31,534-39 and H 31,540-74 (daily ed. Sept. 13, 1971)
‹ 117 Cong. Rec. H 31753-82 (daily ed. Sept. 14, 1971)
‹ 117 Cong. Rec. S 32,143-45 (daily ed. Sept. 16, 1971)
‹ H.R. Rep. No. 92-116 (1971), reprinted in 1971 U.S.C.C.A.N. 1435, 1971 WL 11359

Legislative History of 18 U.S.C. § 4001(b)  (click link to get to items below)
‹ H.R. Rep. No. 80-304, at A178 (1947)
‹ 72a Cong. Rec. H 2156-58 (daily ed. Jan. 22, 1930)
‹ 72a Cong. Rec. S 8574-76 (daily ed. May 8, 1930)
‹ 22 Cong. Rec. S 2720-21 (daily ed. Feb. 16, 1891)
‹ 22 Cong. Rec. S 2924-25 (daily ed. Feb. 19, 1891)
‹ 22 Cong. Rec. S 3562-63 (daily ed. Feb. 28, 1891)
‹ H.R. Rep. No. 71-106, at 1-3 (1930)
‹ S. Rep. No. 71-533, at 1-3 (1930)
‹ Acts of 51st Congress, Second Session, 1891 Ch. 529, March 3, 1891

Legislative History of 10 U.S.C. § 956(5)
< H. Rep. No. 98-1080, at 129, 336, accompanying H.R. 5167 (1984)

Legislative History of 8 U.S.C. § 1226(a)
‹ H.R. Rep. No. 104-879, at 103-25 (1997)
‹ H.R. Rep. No. 104-469, Part I, at 4-9, 18-19, 108-27, 152-67, 218-19, 228-31 (1996)
‹ H.R. Rep. No. 82-2096, at 48-53, 126-129, accompanying H.R. 5678 (1952)
‹ H.R. Rep. No. 104-828, at 1-3, 38-41, 199, 210-15, accompanying H.R. 2202 (1996)
‹ H.R. Rep. No. 82-1365, at 1-31, 54-61,90-91, 180-87, accompanying H.R. 5678 (1952)

Legislative History of 8 U.S.C. § 1226a
‹ H.R. Bill ___Anti-Terrorism Act of 2001, 107th Cong., 1st Session (2001)
‹ S. Bill___ Anti-Terrorism Act of 2001, 107th Cong., 1st Session (2001)

Legislative History Pertaining to the Joint Resolution Authorizing the Use of Force 2001
‹Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (“Patriot”) Act, H.R. 2975, 107th Cong. at 46-49 (2001)
‹Judiciary Committee Amendment to H.R. 2975 (Oct. 3, 2001)
‹H.R. Rep. No. 107-236, at 1-2, 18-19, 41-45, 52, 64-65, 368, 402-08, accompanying H.R. 2975 (2001)
‹Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. of the Judiciary, 107th Cong., 1-8, 22-24, 54, 59 (2001)
‹The Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001, Section-By-Section Analysis of H.R. 3162, Office of Chairman Patrick Leahy, Senate Comm. on the Judiciary at 1, 22 (2001)
‹Terrorism: Section by Section Analysis of the USA Patriot Act, CRS Report for Congress RL31200, updated Dec. 10, 2001, at 1, 35
‹147 Cong. Rec. S 10,365-77 (daily ed. Oct. 9, 2001)
‹147 Cong. Rec. S 10,547-574 (daily ed. Oct. 11, 2001)
‹147 Cong. Rec. S 10,575-602 (daily ed. Oct. 11, 2001)
‹147 Cong. Rec. S 10,603-630 (daily ed. Oct. 11, 2001)
‹147 Cong. Rec. S 10,990-11,060 (daily ed. Oct. 25, 2001)
‹147 Cong. Rec. H 6,726-76 (daily ed. Oct. 12, 2001)
‹147 Cong. Rec. H 7,159-207 (daily ed. Oct. 23, 2001)
‹147 Cong. Rec. H. 5,638-60 (daily ed. Sept. 14, 2001)
‹147 Cong. Rec. H. 5,661-83 (daily ed. Sept. 14, 2001)
‹147 Cong. Rec. S 9,413-21 (daily ed. Sept. 14, 2001)
‹Quirin Articles of War, 66th Cong., Sess. II, Ch. 227 at 759-812 (1920)
‹Order Establishing Military Commissions authorized by Article 15 of the Articles of War, 7 Fed. Reg. 5,101 (July 7, 1942)
‹Act of March 3, 1863, 37th Cong., Sess. III, Ch. 80, 81 at 755-58 (1863)
‹Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833-36 (Nov. 16, 2001)

Legislative History Submitted November 28, 2003
‹ 11/28/03 Letter to the Judges of the United States Court of Appeals for the 2d Circuit pursuant to 11/20/03 Order
Exhibit A
‹ Revision of the Articles of War  S. Rep. No. 64-130 (1916)
‹ Revision of the Articles of War: Hearing before the Subcomm. on Military Affairs  64th Cong. 25-29, 40-41 (1916) (statements of Brig. Gen. Enoch H. Crowder, U.S. Army, Judge Advocate General)
Exhibit B
‹ Revision of the Articles of War: Hearing on H.R. 23628 before the House Comm. on Military Affairs  62 Cong. 39-43, 52-53, 58-59 (1912) (statements of Crowder)
Exhibit C
‹ Uniform Code of Military Justice, 10 U.S.C. § 801, et seq.  pp 293-316; pp 317-340; pp 341-365

Joint Appendix (TOC)
‹ Docket Sheet
‹ Petition for Writ of Habeas Corpus
‹ Amended Petition For Writ of Habeas Corpus
‹ Declaration of Micheal Mobbs (8/27/2002) and President George W. Bush's June 9, 2002 Order Designating Jose Padilla an Enemy Combatant
‹ Affidavit and Affirmation of Donna R. Newman, Esq. - September 24, 2004 and November 22, 2004
‹ Declaration of Vice Admiral Lowell E. Jacoby
‹ Transcript of Proceedings - July 31, 2002; October 21, 2002; January 15, 2003; March 27; 2003
‹ Order Dated September 26, 2002
‹ Opinion and Order of the District Court - December 4, 2002; March 11, 2003; April 9, 2003
‹ Government's Motion and Padilla's Motion for Permission to Take an Interlocutory Cross-Appeal and for Expedited Appeal - and Order Granting Motions

Jonathan M. Freiman, a member of Wiggin and Dana's national appellate practice group, served as one of Padilla's attorneys in the U.S. Supreme Court and continues to represent him on remand in the District of South Carolina and the Fourth Circuit.  Before representing Padilla, he wrote an amicus brief in the Second Circuit on behalf of a bipartisan coalition of organizations, including the Cato Institute and People for the American Way.