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Washington DC attorney M writes:
Fair enough, I said, what is the proper verb you would use to describe it? Is it unusual? He responded:I am not sure how you concluded that the administration tried to “strong arm” a judge to reverse his decision. I read the article to indicate that they sent Clement in to seek reconsideration of the judge’s order, which does not in any way suggest “strong arming” or improperly pressuring the judge. It is, however, a tactic that is highly unlikely to work and therefore was rightly considered a “suicide mission.”
Posted with permission.There is nothing improper about filing a motion for reconsideration. It is unusual (but far from unheard of) for two reasons. First, legally the motion is supposed to consist of something more than simply rearguing the same points the judge already rejected (eg, it should show that the judge overlooked some controlling precedent, completely misunderstood the arguments, or something along those lines). Second, as a practical matter, there is little point in re-arguing something the judge has already rejected.
I think the point that the article is trying to make is not that the administration was trying to strong arm the judge, but that Cheney, Addington, et al, insisted on going back to the judge and making the same arguments in more vehement language, a tactic that the legal professionals like Olson realized would be pointless and self-defeating (ie, it would just make the judge madder at the government).
Update: Reader S disagrees:
That's how I read it too. If there was a motion filed, presumably that would be accessable in court filings. But the Post did not seem to indicate that was the case.When I read this bit:
"When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. "
The verbs "send" and "tell" do indicate, to me, not that Paul Clement was told to file a motion - it is more consistent, I think, with him going to see the Judge and talking with him. If that is correct, it would be more consistent with your initial read of "strong arming" than filing a motion.
Update II: S writes back:
Another attorney says he couldn't find the filings on PACER but found the same March 11, 2003 CNN report referencing Clement's efforts to get the judge to reconsider his ruling:In the mean time I .. found this:
http://www.cnn.com/2003/LAW/03/11/padilla.decision/index.htmlIt does indeed look like there was an additional motion filed. While this doesn’t preclude a visit, it does support your reader Washington DC attorney M’s interpretation. ...
Comments lawyer A: "So it sounds more like a routine motion for reconsideration. Probaby called a 'suicide mission' [because] Mukasey had made his views perfectly clear. Note the dig at Clement and Comey, comparing their arguments to those of 'non-lawyers.'"A federal judge Tuesday ordered the government to allow lawyers to meet with alleged "enemy combatant" Jose Padilla, an American citizen accused of being an al Qaeda operative who plotted to detonate a radioactive "dirty bomb" inside the United States.
The decision is a legal setback for the Bush administration, which sought to block Padilla from meeting his defense lawyers under any circumstances, saying national security is more important than a detainee's right to counsel.
U.S. District Judge Michael Mukasey rejected the government's argument in a 35-page decision, ordering the government to permit Padilla's New York-based attorneys to visit the prisoner, who has been held incommunicado in a South Carolina Navy brig since June.
"Absent agreement, the court will impose conditions," Mukasey wrote. "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so."
Mukasey scheduled a March 27 court session to settle logistical details for the meetings.
He said Padilla "must have the opportunity to present evidence that undermines" the government's accusations stated publicly by Attorney General John Ashcroft, though no formal charges have ever been filed. "The only practicable way to present evidence, if he has any and chooses to do so, is through counsel," the judge said.
Mukasey is the same judge who ruled last December that the president's use of the "enemy combatant" classification is lawful. He also ruled that defense attorneys should be permitted to visit with Padilla, but Deputy Solicitor General Paul Clement and U.S Attorney James Comey asked Mukasey to reconsider that.
"The government's arguments here are permeated with the pinched legalism one usually encounters from non-lawyers," wrote Mukasey, who had signaled his impatience with the government's views at a January hearing.