Balkinization: U.S. citizen alleges he was tortured in U.S. custody inside the U.S.

Comments:

Is this the same thing that came out three weeks ago? Or are there new allegations here?

# posted by

Disenchanted Dave said...

Is this the same thing that came out three weeks ago? Or are there new allegations here?

This is the same thing. The press is regurgitating it before the election for political reasons.

# posted by

Bart DePalma : 11:46 AM

What I find interesting about this filing in support of the motion to dismiss is that the allegations of "torture" would be completely irrelevant to such a motion. ABC News reported:

Last year, the government decided to charge Padilla in civilian court -- but the charges against him made no mention of the dirty bomb plot or any statements he made during the more than three years he had been held in a military brig in South Carolina.

If the Government is not introducing any statements by Padilla gained under "torture," as evidence in the criminal case, then I fail to see how this argument is relevant in a motion to dismiss. Instead, this brief sounds like a civil complaint for damages. In this context, though, the purpose of this filing appears to be a bid for public sympathy through the press.

Next, I have serious doubts as to the veracity of many of the allegations made in this brief. The allegation that the Government administered LSD as some sort of a truth serum is absurd as a matter of fact because LSD does not act in that manner. Rather, the LSD allegation appears to be a replay of a 60s and 70s allegation against the CIA. Likewise, the threats of imminent execution and being cut by a knife are also highly unlikely. None of these are approved coercive interrogation techniques. Moreover, the location of this interrogation was a Navy Brig not some unsupervised detention center in Afghanistan, so it is unlikely some rogue interrogator was doing what he pleased.

# posted by

Bart DePalma : 12:07 PM

Bart, I'm not going to bother making an argument because I know you'll invent a way to dismiss it, but you may want to figure out how to insulate your position against the fact that Judge Luttig found the absence of any mention of the original accusations in the charges against Padilla to be a highly revealing indication that the government had no legitimate evidence to support the kind of detention they wanted.

Keep in mind that Luttig is not exactly Judge Taylor or the ACLU or Amnesty International, considering that he wrote the opinion authorizing Padilla's continuing detention and was almost nominated by Bush for the Supreme court. The fact that he says the administration lied in order to keep Padilla out of court for close to four years is not irrelevant at all.

Incidentally, I think you're hilarious. You defend the administration's right to do these sorts of things incredibly tenaciously, but you're not willing to acknowledge that they're being done.

We do agree on one thing, though. "[I]t is unlikely some rogue interrogator was doing what he pleased." This sort of thing is usually highly coordinated, especially with the "high level" suspects. We know that Rumsfeld was personally involved in Khalid Shaikh Mohammad's interrogations, for example.

# posted by

Disenchanted Dave : 12:38 PM

Disenchanted Dave said...

Bart, I'm not going to bother making an argument because I know you'll invent a way to dismiss it, but you may want to figure out how to insulate your position against the fact that Judge Luttig found the absence of any mention of the original accusations in the charges against Padilla to be a highly revealing indication that the government had no legitimate evidence to support the kind of detention they wanted.

Why do I need to insulate myself from this observation? I disagreed with the Government's initial detention of Padilla without charge.

I agree with Justice Scalia that US citizens should be tried in criminal court for treason or any other applicable criminal statute when they give aid and comfort to the enemy.

Where I disagree with many here is that I refuse to extend constitutional rights of US citizens to alien enemy combatants during wartime.

# posted by

Bart DePalma : 1:08 PM

Bart,

Sometimes it seems you mistake volume for legitimacy, quantity of words for quality of reasoning. A pity. Perhaps, since it is topical again, you would like the chance to once again weasel out of answering the question I've asked before: "...when some future president determines you to be an alien unlawful enemy combatant or otherwise subject to MCA will that be a comfort? Or are you under the impression that there is some requirement of reasonableness to that determination? If so could you point us, please, to the section of the Act that requires such?"

Your cowardly avoidance of this question in the past does little for your credibility in the present, no matter how many words you trowel between the question and yourself.

# posted by

Robert Link : 2:31 PM

Robert Link said...

Bart, Perhaps, since it is topical again, you would like the chance to once again weasel out of answering the question I've asked before: "...when some future president determines you to be an alien unlawful enemy combatant or otherwise subject to MCA will that be a comfort? Or are you under the impression that there is some requirement of reasonableness to that determination? If so could you point us, please, to the section of the Act that requires such?"

I usually do not engage in what ifs without a basis in fact, but since you are insistent, I will give this one a shot.

1) To start, your premise is faulty. There is no evidence that the military has ever found an American citizen to be an alien unlawful enemy combatant. To start, this is contradiction in terms. You are either a citizen or an alien. Padilla was not held because he was an alien, he was held because he was allegedly an unlawful enemy combatant.

2) Under the MCA, citizens like Padilla can be found to be unlawful enemy combatants, but nothing in that statute strips them of their constitutional rights.

3) The greatest danger to a citizen's exercise of his or her constitutional rights when found to be an unlawful enemy combatant is presented by the majority in the badly fractured Hamdi v. Rumsfeld. I find the Scalia dissent more persuasive.

4) Finally, based on their track records to date, I do believe that the Combatant Status Review Tribunals reasonably attempt to determine whether the detainee is a lawful enemy combatant, unlawful enemy combatant or civilian under the definitions provided by the Geneva Conventions and now the MCA.

5) All laws are assumed to be applied reasonably. If I was picked up off the street by the military police and the military arbitrarily determined that I am an alien unlawful enemy combatant with no evidence, the courts will recognize by right to habeas review when I can prove that I am a citizen and through that vehicle may reverse an arbitrary attempt to miss designate me. However, I have faith in the JAG Corps to get the designation right in the first instance.

# posted by

Bart DePalma : 3:47 PM

Dave - my understanding is that while the initial press attention came in connection with the defense motion, there was a question at the time as to whether the Goverment would have to respond to the allegations. I believe it is the fact that the Judge in Fla. has ordered a response by Gov and that is what has created the recent stories.

# posted by

Mary : 3:50 PM

Finally, based on their track records to date, I do believe that the Combatant Status Review Tribunals reasonably attempt to determine whether the detainee is a lawful enemy combatant, unlawful enemy combatant or civilian

Pretty funny, thanks for sharing.

# posted by

Mary : 3:55 PM

After a fair amount of non-responsive throat clearing (your bullets 1-4), you simply beg the question, Bart:

5) All laws are assumed to be applied reasonably.

So you don't actually subscribe to the notion of plain meaning interpreataion; you prefer to add in words you believe must have been meant to be included. Interesting, and a tad inconsistent. We can assume then you, like us, fail to find anything in the actual text which establishes the required criteria for such determinations?

If I was picked up off the street by the military police and the military arbitrarily determined that I am an alien unlawful enemy combatant with no evidence, the courts will recognize by(sic) right to habeas review when I can prove that I am a citizen(emphasis added)

And how, my friend, will you be able to prove your citizenship under laws which strip you of habeas rights? You've been locked up as a terror suspect, held without reperesentation, without due process; how, sir, do you propose to prove your citizenship...much less your innocence (which, interestingly, doesn't seem to be an issue for you here.)

However, I have faith in the JAG Corps to get the designation right in the first instance.

Under systems such as the divine right of kings I can understand such an appeal to faith. Her in America we like to at least pretend to the rule of law, and so such appeals to faith are disallowed. As you well know.

# posted by

Robert Link : 4:28 PM

Robert Link said...

5) All laws are assumed to be applied reasonably.

So you don't actually subscribe to the notion of plain meaning interpreataion; you prefer to add in words you believe must have been meant to be included. Interesting, and a tad inconsistent. We can assume then you, like us, fail to find anything in the actual text which establishes the required criteria for such determinations?

This is getting tiring. We have discussed this before in depth in response to several posts in the MSA.

The MSA specifically defines lawful and unlawful enemy combatants. The term alien has a commonly understood meaning as the opposite of citizen. Combatant has a commonly understood meaning as the opposite of civilian.

The military status commissions are bound by these definitions and meanings.

If I was picked up off the street by the military police and the military arbitrarily determined that I am an alien unlawful enemy combatant with no evidence, the courts will recognize by(sic) right to habeas review when I can prove that I am a citizen(emphasis added)

And how, my friend, will you be able to prove your citizenship under laws which strip you of habeas rights?

My family has my birth certificate and can personally testify as to my citizenship. Moreover, the MSA does not strip me of habeas review just because the Government has declared me an alien in your fantasy hypothetical. The court receiving the habeas petition can make the determination of my citizenship.

You've been locked up as a terror suspect, held without reperesentation, without due process; how, sir, do you propose to prove your citizenship...much less your innocence (which, interestingly, doesn't seem to be an issue for you here.)

To start, I reject your premise a being completely unfounded. The detainees are given military defense attorneys and provided with a status hearing.

However, let's engage in your fantasy that I have been disappeared to some Gulag. My family can initiate legal proceedings in federal court. If not my family, there appear to be no shortage of attorneys ready to volunteer.

Are we clear yet?

# posted by

Bart DePalma : 4:58 PM

BDP: Where I disagree with many here is that I refuse to extend constitutional rights of US citizens to alien enemy combatants during wartime.

If I recall correctly, wasn't Jose Padilla born in Brooklyn (parents moved there from Puerto Rico), and a natural citizen as a child of citizens?

Also, does the AUMF count as a formal declaration of war? What requirements does the constitution lay out for a formal declaration of war? What did other declarations of war look like?

# posted by

John : 5:20 PM

bitswapper said...

BD: Where I disagree with many here is that I refuse to extend constitutional rights of US citizens to alien enemy combatants during wartime.

If I recall correctly, wasn't Jose Padilla born in Brooklyn (parents moved there from Puerto Rico), and a natural citizen as a child of citizens?

Padilla is a citizen who is entitled to constitutional rights. I am referring to the alien enemy combatants we have detained at Gitmo.

Also, does the AUMF count as a formal declaration of war? What requirements does the constitution lay out for a formal declaration of war? What did other declarations of war look like?

There is nothing definitive on this subject in the Courts. The way I look at it, if an AUMF looks like, walks like and quacks like a declaration of war, it is one. The Supremes have been treating the AUMF as such for the purposes of detaining enemy combatants in the handful of decisions on the subject to date.

# posted by

Bart DePalma : 5:29 PM

Bart: My family has my birth certificate and can personally testify as to my citizenship.

What part of the MCA requires anyone to listen? Raise all the red herrings you like, protest as you will; your eye-rolling and breast-beating are just noise until you answer this question. What part of the MCA prevents me, as President, from locking you up and throwing away the key? What part gives your family notice such that they are able to protest? Which words in the MCA stop me, as President, from doing this for any reason or no reason at all? An important question, since, as as you pointed out elsewhere, the only reason for a trial would be to have you executed.

Practicing what I preach requires I let that question sit and move on. You are not interested in honest discourse, nor, seemingly, able to answer a simple question directly and honestly. I'm done with you on this thread (unless you want to invite me back via private email.) See ya 'round.

# posted by

Robert Link : 5:48 PM

Maybe rephrasing Robert's question would help. Would your opinion of the MCA be changed if the word "alien" were to drop out in a future revision? Alternatively, if changes to the prerequisites of citizenship were changed in a manner that excluded you from protection (perhaps the determination of unlawful enemy combatant status would be sufficient to warrant a negation of citizenship?)

To start, I reject your premise a being completely unfounded. The detainees are given military defense attorneys and provided with a status hearing.

The MCA only requires that such counsel be provided long enough in advance to allow the preparation of a defense (Sec. 948s). So, Robert's claim that nothing in the MCA prevents you from being "held without representation" is correct, as you can be held indefinitely prior to your trial.

Status hearings are executed by a "by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense" (Sec. 948d.(c))

There is no indication in the MCA that such hearings require the input of defense counsel, nor that the accused will have the ability to present materials supporting assignment to a particular designation. I think this is the crux of Robert's point, namely that the assumption of reasonableness that you are bringing to the table is not necessarily a given (especially when the commissions are located firmly within the politically sensitive executive branch), and the specific procedures that would assure the categorical safety of the accused (i.e. obtaining unlawful- or lawful- vs. alien unlawful- enemy combatant status) are not detailed within the MCA at all. The criteria for the designations is somewhat clear, but the process by which those designations are made is not spelled out in the least.

# posted by

PMS_CC : 6:55 PM

"Bart" DePalma:

Likewise, the threats of imminent execution and being cut by a knife are also highly unlikely. None of these are approved coercive interrogation techniques.

"Bart" knows all about "approved coercive techniques". You know, like beating a suspect's legs to a bloody pulp so badly that the guy died. "Bart" has his standards, you know. They're just a little bit different when interrogating "illegal enemy combatants".....

Cheers,

# posted by

Anonymous : 8:48 PM

"Bart" DePalma:

Moreover, the location of this interrogation was a Navy Brig not some unsupervised detention center in Afghanistan, so it is unlikely some rogue interrogator was doing what he pleased.

Ummmm ...... why?

Cheers,

# posted by

Anonymous : 8:49 PM

"Bart" DePalma:

I usually do not engage in what ifs without a basis in fact,...

Busted.

Cheers,

# posted by

Anonymous : 8:53 PM

"Bart" 'Da Vinci Code' DePalma uncovers the long lost Fifth Geneva Convention:

4) Finally, based on their track records to date, I do believe that the Combatant Status Review Tribunals reasonably attempt to determine whether the detainee is a lawful enemy combatant, unlawful enemy combatant or civilian under the definitions provided by the Geneva Conventions and now the MCA.

That's covered in the Fifth Geneva Convention Relative to the Treatment of Unlawful Enemy Combatants. Kudos to "Bart" for his breath-taking scholarship.....

Cheers,

# posted by

Anonymous : 8:57 PM

"Bart" DePalma:

However, I have faith in the JAG Corps to get the designation right in the first instance.

Perhaps. That'd be the JAG Corps that has objected vociferously to the Dubya maladministration's planned military commissions....

Cheers,

# posted by

Anonymous : 9:00 PM

"Bart" DePalma says:

To start, I reject your premise a being completely unfounded. The detainees are given military defense attorneys and provided with a status hearing.

Oh. Like the lawyer they gave Hamdan, who was told to get him to plead guilty, and when he didn't, got black-listed for it. What a comfort to know.

Cheers,

# posted by

Anonymous : 9:05 PM

Bart: "I usually do not engage in what ifs without a basis in fact, but since you are insistent, I will give this one a shot."

What a crock of BS that is: your entire position on these issues is nothing but fraudulent suppositions, fallacies, and prejudice.

# posted by

Charles Gittings : 1:15 AM

The fun thing is that the Bushies can't hold a coherent position. As everyone might recall Mr DePalma is furious, furious I tell thee, because 7 New Jersey Justices did not stick to the literal wording of their constitution. Those terrible liberal activist judges!

Mr DePalma goes on in this thread to assume that "all laws are assumed to be applied reasonably" to do away with the flaws of the MCA.

Good Night Bart. Sleep well.

# posted by

Anne : 2:24 AM

Oh by the way Bart, have you actually read the motion? I did. You pose that because the government isn't brining charges on the whole dirty bomb thingy, it is irrelevant whether his statements were obtained through torture.

This is a straw man. The defense does not argue such thing. The defense argues that because of outrageous government conduct (torture) it shouldn't be allowed to prosecute Padilla.

# posted by

Anne : 2:30 AM

I usually do not engage in what ifs without a basis in fact...

Well... let see now what you wrote on saturday 28th October: "Let us assume for the purposes of this hypothetical that waterboarding is legal. Let us also assume that the Unites States captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans based on his position within the organization and involvement with past terrorist attacks."

It is so nice that it's all on the record.

# posted by

Anne : 2:37 AM

But everybody, let's not give Bart the pleasure of taking our eyes of the ball here.

In this thread we are discussing a motion to dismiss a criminal case because of allegations that a U.S. tortured him, a U.S. citizen, while he was in custody in the U.S.

Bart just dismisses that this ever happened because "none of these are approved interrogation techniques".

I am so looking forward to the hearing on the motion where Bart will proudly defend the motion with his two arguments:
- whether the government tortured Padilla is irrelevant in this case, because we the government decided to prosecute on different charges.
- in case it is relevant, the motion must be dismissed at outset because the allegations can't be true: "none of these are approved interrogation techniques". Torture doesn't happen, because the goverment says it doesn't.

Yoo, the OLC, and your mother would be proud of your apt legal reasoning.

# posted by

Anne : 2:55 AM

@disenchanted dave: the reason this story came up again is because of an amicus brief apparently filed yesterday by 7 retired federal judges on behalf of Padilla.

That brings me to the following question. Has anyone seen the amicus brief itself? I'd really like to read it.

# posted by

Anne : 6:12 AM

BD:"Padilla is a citizen who is entitled to constitutional rights. I am referring to the alien enemy combatants we have detained at Gitmo."

Excuse me, actually. I had thought the conversation had something to Padilla, and rights of US citizens. Truly though, some digression isn't a bad thing.

"The way I look at it, if an AUMF looks like, walks like and quacks like a declaration of war, it is one. The Supremes have been treating the AUMF as such for the purposes of detaining enemy combatants in the handful of decisions on the subject to date."

As long as the topic of war seems relevant to this, then if the AUMF is to be seen as a declaration of war, it seems ambiguous in some respects (what country are we at war with, for example) and predisposed to an indefinite term (although not explicitly). Perhaps its ambiguities makes it a poor declaration of war. We do seem to be having a hard time deciding what to focus on - fighting terrorists or building new stable countries we hope will like us enough to really help us. It reminds me of the saying the a hunter who chases two rabbits catches neither.

In an ideological war, we eschew our own ideals at the cost of our own success.

# posted by

John : 9:56 AM

I don't understand the apparent distrust by the left of administrative tribunals. My taxes, my right to a building permit on my property, etc. are all determined by administrative tribunals. And as Jane Galt perceptively asked: "Who are most Americans more worried about: the NSA or the IRS?"

# posted by

sean : 11:05 AM

@Sean: my guess...? They did a pispoor job in GITMO until now. There are no clear rules or procedures; the judges can be handpicked by Rumsfeld

Do I need to go on?

# posted by

Anne : 11:24 AM

bitswapper: Perhaps [AUMF's] ambiguities makes it a poor declaration of war.

I'll second that motion; it's the motivation behind our work at repeal-aumf.org. AUMF gives legislative embodiment to the "war" on "terror". As such it is simply and clearly void for vagueness. Giving *any* executive a blank check of this nature "in order to prevent any future acts of international terrorism" is unconscionable; the letter of this law is that the sitting President has full war powers so long as anyone anywhere is capable of considering terrorist activities---which is to say, forever. Had this resolution identified even as amorphous a target as al Qaeda it would have been closer to Bart's "Barbary Pirates" example, but as phrased, we could have given the same powers to Johnson for the "war" on poverty or Clinton [or Reagan or Bush Sr.] for the "war" on drugs. It was irresponsible of this President to ask for these powers, it was a dereliction of duty for Congress to so grant them, and it is nothing short of a travesty that AUMF has not yet been struck down by the court. These points bear frequent repeating.

Side note, I only wish repeal-aumf.org had the panache of Charles' Project to Enforce the Geneva Conventions. If y'all haven't checked it out yet, you should.

Lastly, probably for the rest of the day, I was wondering if any of my fellow Balkinites have thoughts on H.R. 5122: John Warner National Defense Authorization Act? It's being touted as giving the President incentive to declare martial law, which strikes me as alarmist, but I have not yet been able to get my head around the text.

Peace.

# posted by

Robert Link : 11:59 AM

Anne,

I hadn't heard of an amicus in Padilla but there was one in the D.C. Circuit in Al Odah and Boumediene -- anlong with two supplemental briefs for the detainees challenging the MCA on constitutional grounds. See SCOTUSblog here:

First new briefs on detainees' rights

# posted by

Charles Gittings : 1:01 PM

I don't understand the apparent distrust by the left of administrative tribunals. My taxes, my right to a building permit on my property, etc. are all determined by administrative tribunals.

Here are some fairly obvious differences:

1. Judicial review. If you disagree with the IRS, you can go to court. Along with that fundamental right comes a whole host of others: right to counsel, right to obtain evidence, etc.

2. You get to elect the officials who run the IRS. If you don't like the way it's run, you can vote the scoundrels out of office.

3. Everybody has to face the IRS. The judges who hear your case can identify with you.

As for trusting the administrative panels, I trust them more than I trust Bush. He's proved untrustworthy, they haven't (yet). That said, though, I still remember the words of a famous American: trust, but verify. Why does the Right resist so hard when it comes to verifying?

# posted by

Mark Field : 1:29 PM

Sean said:

I don't understand the apparent distrust by the left of administrative tribunals. My taxes, my right to a building permit on my property, etc. are all determined by administrative tribunals.

Agreed. But they can't "disappear" you. Not to mention, you have the right to go to court for review if you think the tribunals haven't done the right thing.

Cheers,

# posted by

Anonymous : 2:13 PM

Robert Link:

I'll second that motion; it's the motivation behind our work at repeal-aumf.org. AUMF gives legislative embodiment to the "war" on "terror". As such it is simply and clearly void for vagueness.

Because only Congress can declare war (it is a plenary and non-delegable power), Congress can't justhand out black checks to the maladministration to go to war with whoever they want, whenever they want, etc. It's an abrogation of Congressional responsibility in by book, and an illegal one at that.

Cheers,

# posted by

Anonymous : 2:17 PM

To answer Bart's question as to why Padilla's treatment is relevant, normally it would not be. Under the "Ker-Frisbie" doctrine (Ker v. Illinois, Frisbie v. Collins), the fact that a detainee was abused by the government before trial may give rise to a civil suit but cannot form the basis for a dismissal of an indictment.

However, many courts recognize what is called the "Toscanino" exception to the Ker-Frisbie doctrine, based on a case called United States v. Toscanino, which indicates that in narrow circumstances where the government's conduct is completely outrageous, the Ker-Frisbie doctrine does not apply and the indictment can be dismissed.

This is a very tough standard for Padilla to meet; at the same time, Padilla's lawyers have made very serious allegations that some courts might find to meet the standard.

But that's what this filing is all about-- whether the government's treatment of Padilla was so extreme so as to justify precluding the government from prosecuting him.

# posted by

Dilan : 2:41 PM

Anne said...

Oh by the way Bart, have you actually read the motion? I did.

Could you post a link? I would enjoy reading it as well.

You pose that because the government isn't brining charges on the whole dirty bomb thingy, it is irrelevant whether his statements were obtained through torture.

No, let me clarify one more time.

ABC News reported that the government is not offering any statements made under interrogation as evidence. Therefore, the means of obtaining such statements is irrelevant because they are not before the court. These statements cannot be excluded and that exclusion be the basis for a motion to dismiss.

The defense argues that because of outrageous government conduct (torture) it shouldn't be allowed to prosecute Padilla.

Did your the brief give any case law for this incredible proposition?

If a police officer wrongfully splits a suspect's head open while arresting him for murder, that doesn't mean that the suspect is given a pass from prosecution for the murder. Rather, the suspect may have a law suit for assault.

# posted by

Bart DePalma : 2:49 PM

Anne said...

BD: I usually do not engage in what ifs without a basis in fact...

Well... let see now what you wrote on saturday 28th October: "Let us assume for the purposes of this hypothetical that waterboarding is legal. Let us also assume that the Unites States captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans based on his position within the organization and involvement with past terrorist attacks."

You neglected to post the preceding paragraph from my post giving the background facts on Sheik Khalid Muhammad. My hypothetical was virtually a fact for fact repetition of that real life case.

In contrast, Robert Link is making up his hypothetical facts from whole cloth. Thus, my critique above.

# posted by

Bart DePalma : 2:53 PM

Dilan said...

To answer Bart's question as to why Padilla's treatment is relevant, normally it would not be. Under the "Ker-Frisbie" doctrine (Ker v. Illinois, Frisbie v. Collins), the fact that a detainee was abused by the government before trial may give rise to a civil suit but cannot form the basis for a dismissal of an indictment.

However, many courts recognize what is called the "Toscanino" exception to the Ker-Frisbie doctrine, based on a case called United States v. Toscanino, which indicates that in narrow circumstances where the government's conduct is completely outrageous, the Ker-Frisbie doctrine does not apply and the indictment can be dismissed.

Correct me if I am wrong, but wasn't the argument in those cases that the court lacked jurisdiction over the defendant because the government illegally transported the defendant from another state or country to stand trial?

These cases do not appear to apply to the issue of interrogation raised here.

# posted by

Bart DePalma : 3:09 PM

"Bart" DePalma:

["Bart"]: I usually do not engage in what ifs without a basis in fact...

[Anne]: Well... let see now what you wrote on saturday 28th October: "Let us assume for the purposes of this hypothetical that waterboarding is legal. Let us also assume that the Unites States captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans based on his position within the organization and involvement with past terrorist attacks."

You neglected to post the preceding paragraph from my post giving the background facts on Sheik Khalid Muhammad. My hypothetical was virtually a fact for fact repetition of that real life case.

Even if we assume that "waterboarding" is legal (which is by no means established), and assume the facts are just as in the Khalid Sheikh Muhammad case (and for that we only have the maladministration's word, or more accurately, "Bart"'s word for the maladministration's word), and we assume that we have an identical or similar situation (which is clearly a counterfactual hypothetical), we have the rest of "Bart"'s assumptions: That the person he questioned was in a position to make a choice and knew all this. This positively reeks of counterfactual (or at best dubious) assumptions. All to play "gotcha!".... That's our "honest", "above-board" Mr. DePalma....

Cheers,

# posted by

Anonymous : 6:20 PM

Arne: All to play "gotcha!"

But not really so surprising; having lost utterly on the point in question a person arguing to persuade others to his world view is served by claiming "victory" on non-issues; sadly, our semi-literate electorate is swayed by such antics. I like to think that visitors to sites such as this run slightly more literate and more capable of critical thinking, but the truth is that by insinuating as he does some readers will walk away thinking he has scored some kind of point---and will never think back to the total failure to prevail on the more important point, to wit, that there is nothing in the text of the MCA to prevent any President from using it against her political opponents. On the contrary, as Mr. DePalma has pointed out, once an adminstration has apprehended someone on putative MCA grounds there is no reason to bring trial at all---except to execute. While the due process right of a speedy trial might seem frivolous for our enemies, it turns out to be something Bart himself couldn't imagine being deprived of when pushed on the matter. I hesitate to point out that even his claim of my hypothetical being invented "whole cloth" begs the question: Bart wants to pretend the policies of his beloved adminstration are only and always pursued against "the enemy," without ever once taking into account that "the enemy" is whomever the adminstration says it is.

# posted by

Robert Link : 7:00 PM

Bart if you'd use the Google you'd find it in 10 seconds. I find it telling that you said that you had "serious doubts as to the veracity of many of the allegations made in this brief" while never having read the whole thing.

# posted by

Anne : 7:18 PM

Bart:

Assuming Toscanino is good law (and not all courts accept it), the same "outrageous government conduct" standard applies for both transborder abduction and pretrial abuse of a detainee. Certainly a number of litigants who have made Toscanino motions over the years have argued that they were abused or tortured.

And while Frisbie is a transborder abduction case, as I recall, Ker may be a transborder abduction and detainee abuse case, and in any event, both cases state their rule broadly as saying whatever the government did to the detainee, he or she can still be tried. If Toscanino is a valid exception to that, it would mean that if the government did something sufficiently outrageous to the detainee, it would require dismissal of the indictment. The fact that there is no transborder abduction claim here wouldn't change that.

# posted by

Dilan : 8:44 PM

Anne said:

Bart if you'd use the Google you'd find it in 10 seconds. I find it telling that you said that you had "serious doubts as to the veracity of many of the allegations made in this brief" while never having read the whole thing.

Anne, "Bart"'s 'research' consists of cut'n'paste from Freeperville and WhirledNutzDaily, and the occasional "blast fax" from RNC Central.

In fact, his lazy "cut'n'paste" habits have gotten him in trouble previously for misciting cases, not checking them before pasting them in.

Cheers,

# posted by

Anonymous : 10:35 PM

Anne said...

I find it telling that you said that you had "serious doubts as to the veracity of many of the allegations made in this brief" while never having read the whole thing.

ABC News reported the most salacious allegations of alleged torture. I did not need to see the allegations in the original document to know what they were.

These allegations are not evidence. They are simply the inadmissible statements of Padilla's attorneys. Padilla has not testified and, more importantly, not been subject to cross examination.

I posted above why I found these attorney statements to be incredible. Nothing about the brief changes my opinion.

Bart if you'd use the Google you'd find it in 10 seconds.

Is this a game of hide and seek?

For those who are interested, the brief is posted at:

http://www.discourse.net/archives/docs/
Padilla_Outrageous_Government_Conduct.pdf

The defense team, to its credit, admits up front that this is a long shot defense.

In a nutshell, the outrageous conduct defense is a claim that the due process amendment is violated when the government obtains the evidence against the defendant or the person of the defendant for trial through outrageous means.

For example, in the lead case of Rochin v.
California, 342 U.S. 165 (1952), a drug possession conviction was overturned because the drugs used as evidence was gained through a stomach pump after the defendant swallowed it.

Likewise, in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), another drug conviction was overturned because the government kidnapped the defendant and brought him back to the US from Uruguay.

Neither one of these situations apply to Mr. Padilla.

As I posted before, the unproven allegation that Mr. Padilla was "tortured" is irrelevant to his current prosecution. The outrageous conduct defense is inapplicable because neither his person nor the evidence presented against him was produced at trial due to this alleged "torture." The Court cannot suppress any evidence for being obtained illegally through this alleged "torture" because the government is not offering any which was so obtained.

The defense is arguing that it is enough that the alleged and unproven "torture" shocks the conscience. However, this is only one element of the defense. The acts which shock the conscience also have to deny the defendant due process at his trial. The defense ignores this element and thus its motion to dismiss fails.

If Mr. Padilla wants to make a civil claim that the Government violated his rights to be free from cruel and unusual punishment, then let him go ahead and testify to his alleged "torture" and be subject to cross examination and contrary evidence. However, even if every iota of his attorneys' allegations are true, this "torture" does not pardon him if he has committed a crime.

# posted by

Bart DePalma : 11:16 PM

I am not, currently, in a position to dispute, much less refute Bart's latest post. And let's be clear, while Padilla's defense attorneys must do their utmost for their client, it is not entirely implausible that this man is guilty of conspiring to commit heinous acts against his fellow citizens. If true he certainly should be prosecuted accordingly for his criminal acts.

But don't, please good people, don't let Bart or his ilk distract you from the larger issues. Padilla qua Padilla is ugly, but the legislation passed under the rubric of the "war" on "terror" gives to the executive vast powers to do great injustice. It may be that Padilla is an evil traitor deserving of our harshest penalties ; that does not for an instant justify the betrayal of our nation's ideals and identity by Bart's partisans in the current adminstration. Bart and his ilk will do all in their power to divert conversations away from the dangers inherent in the legislation they have passed; they will call any who challenge them "soft on terror." But it is up to true patriots to hold the line for the values on which the country is founded, the values of Liberty, Equality, Freedom. Bart's partisans care little for such fine words, or for documents which seek to protect these ideals. Bart and his partisans would turn these ideals on their head in the name of a "war" on "terror." True patriots must oppose such treasons with our every breath.

Peace.

# posted by

Robert Link : 1:25 AM

To further support Robert's hypothetical situation, have you seen the State Department's list of "potentially expatriating statutes"?

Section 349 of the Immigration and Nationality Act, as amended, states that U.S. citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention to relinquish U.S. citizenship. Briefly stated, these acts include:

(1) obtaining naturalization in a foreign state (Sec. 349 (a) (1) INA);

(2) taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA);

(3) entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);

(4) accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) a declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);

(5) formally renouncing U.S. citizenship before a U.S. consular officer outside the United States (sec. 349 (a) (5) INA);

(6) formally renouncing U.S. citizenship within the U.S. (but only "in time of war") (Sec. 349 (a) (6) INA);

(7) conviction for an act of treason (Sec. 349 (a) (7) INA).

I imagine that as the new lenses with which the government sees its enemies extends to organizations and networks, the language will move from "foreign state" and "foreign government" to something a little fuzzier. Should it be something akin to "enemies of the state," citizenship could become fleeting and removed prior to trial.

# posted by

PMS_CC : 2:01 AM

We have Anne:

[Anne]: I find it telling that you said that you had "serious doubts as to the veracity of many of the allegations made in this brief" while never having read the whole thing.

And then we have "Bart":

["Bart"]: I posted above why I found these attorney statements to be incredible.

As did Anne. I'd say Anne has the more reason to find "these attorney statements" (in this case, "Bart"'s) "incredible".

Cheers,

# posted by

Anonymous : 7:39 AM

"Bart" DePalma says:

In a nutshell, the outrageous conduct defense is a claim that the due process amendment is violated when the government obtains the evidence against the defendant or the person of the defendant for trial through outrageous means.

For example, in the lead case of Rochin v.
California, 342 U.S. 165 (1952), a drug possession conviction was overturned because the drugs used as evidence was gained through a stomach pump after the defendant swallowed it.

Likewise, in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), another drug conviction was overturned because the government kidnapped the defendant and brought him back to the US from Uruguay.

Neither one of these situations apply to Mr. Padilla.

Looking for a common thread here, we have one case where the custody was obtained through outrageous means, and another where the evidence was obtained by outrageous means. One might generalise and say that when the conviction is obtained by outrageous means, there is a violation of due process. There's nothing specific to "evidence" here (and I'd note that Dilan's first quoted case, Toscanino, didn't turn on illegally obtained evidence. It looks more like a claim that outrageous gummint conduct cannot be allowed in order to imprison and convict someone.

If we take the Padilla allegations as true, one would hope that a court would say that the multiple and serial abuses he (allegedly) suffered do in fact constitute an "outrage" (certainly far more than a single incident of stomach pumping, or the unlawful "arrest", detention and transport of Toscanino, something that Padilla experienced as well in his peregrinations through the U.S., outside of the initial arrest). If the allegations (of close confinement, sensory deprivation, exposure to cold, drugs administered, etc.) are true, it's hard to think of more outrageous conduct. "Bart"'s objections to the brief seem to consist of simply saying "I don't beeeellliiieeeevvveee you." Well, that's for a court to dig into, find the facts, and to work out, but as a matter of law, there is nothing wrong with the briefs.

It is telling that the gummint has decided to prosecute on different grounds (and far more obscure ones) than those they "tried in the press" after the initial arrest. It may very well be that the "intellig..." -- ummm, sorry, "information" -- they used for this was derived in the same way as they derived the al-Libi "intelligence" on the Saddam-run al-Qaeda terrorist schools ... and unusable for the very same reasons ... oh, waiddaminnit, the gummint did use the al-Libi "information"....

The fact that the gummint has backed down says a lot about their conduct, and has raised some judicial eyebrows already. Sad to say, if the gummint behaved itself, it might be able to actually prosecute and convict some terrorists. If Padilla goes free, it's not because he's totally innocent (although apparently he may have been more a threat to himself than anyone else). It's because the Dubya maladministration has -- as is typical -- overreacted and done so without thought.

Cheers,

# posted by

Anonymous : 8:06 AM

Robert Link said...

I am not, currently, in a position to dispute, much less refute Bart's latest post...But don't, please good people, don't let Bart or his ilk distract you from the larger issues.

Umm Robert, this thread raised Padilla's motion to dismiss and that is what we are discussing.

# posted by

Bart DePalma : 9:14 AM

I am not, currently, in a position to dispute, much less refute Bart's latest post...But don't, please good people, don't let Bart or his ilk distract you from the larger issues.

BD: Umm Robert, this thread raised Padilla's motion to dismiss and that is what we are discussing.

Hence the use of the word "larger" which implies a comparison between two items. The ongoing conversation in the comments section is about stakes that are much larger than a single case. Don't be disingenuous, you insult yourself when you make comments like the one above. Clearly you are able to extrapolate the potential impact of decisions when the larger context is important to you (i.e. your disgust for recent decisions about gay marriage was based in the larger context of conflict between judiciary independence and judges-as-legislators).

Why play the child now?

# posted by

PMS_CC : 9:46 AM

Robert Link said...

I am not, currently, in a position to dispute, much less refute Bart's latest post...But don't, please good people, don't let Bart or his ilk distract you from the larger issues.

Bart: Umm Robert, this thread raised Padilla's motion to dismiss and that is what we are discussing.

But Bart you didn't read the motion while discussing it. So now you are blaming Robert for not discussing the contents of the memo? You are rambling even more uncoherently now than ever. Guess you've got the Democratic fever. Tough luck

# posted by

Anne : 11:20 AM

For the connaisseurs:
http://www.scotusblog.com/movabletype/archives/2006/11/first_new_brief.html

# posted by

Anne : 12:02 PM

Arne said: peregrinations

Curse you, I had to look that up, just to double check. In most contexts I'd have felt safe glossing that as "wanderings," but here I was worried I might be missing subtle connotations. Couldn't just say "travels", now could ya? B^)

Peregrination

# posted by

Robert Link : 1:36 PM

Anne:

So now you are blaming Robert for not discussing the contents of the memo?

I do not care what Robert posts. He accused me of distracting from the topic. I merely reminded him that I was posting on the topic.

# posted by

Bart DePalma : 2:10 PM

At the risk of being falsely accused of partisanship, I feel honor bound to "shout out" to Anne and PMS Chicago for holding a certain person's feet to the fire. Y'all rock.

And, uh, Bart, if you didn't care what I post you wouldn't have such a need to comment all the time, eh? Any time you want to "censor" me by not talking to me, I'm game. Meanwhile, tell me again how your family is going to prove your citizenship when I, as President, lock you up, putatively under MCA? Which words in the text of MCA give you the right to a speedy trial or to have anyone bring forth any kind of evidence on your behalf in absence of a trial? Come again? I'm a little deaf in that ear... Last I heard, from why-owe-ewe, was that under MCA "we" can keep "enemies" without trial indefinitely, and that indeed the only reason to have a trial is to get a death sentence, which makes sense, considering the due process rights absent even once such a commission convenes. As for staying on topic, well, you've already been outed for being disingenuous once today; I reckon that's enough. But I might remind you that you only addressed this question at all because I called you a coward, my friend, for avoiding it the first three times I asked. (Hey, but if it was only two then you can post about my failure to get the facts straight; that oughtta be good for some kind of diversion.)

# posted by

Robert Link : 2:27 PM

@bart: you are right you don't care what he says. In fact you don't even care what you say yourself. It must be wonderful living in a fantasy world where you can just pretend that you are never wrong, you cannot contradict yourself and everyone else is a dirty treasonous liberal.

As you might recall José Padilla was held as an unlawful enemy combatant while allegedly being tortured. Remember: you said even before you read the brief, that those claims seemed highly unlikely, because these are not approved techniques.

Secondly you said that even if Padilla was tortured it was irrelevant to the case. There is no evidence to dismiss, so who cares if he was tortured. Padilla could always claim damages.

Robert, as you might recall, asked you if you would support your own detainment as an enemy combatant if the president deems you an alien enemy combatant. It seems like a fair question given the fact that Padilla, you know uhmm the topic of this thread, was heald incommunicado for two years, was denied his right to habeas corpus and alledgedly tortured. Somehow the question whether this could happen to anyone seems pretty on topic.

And by the way, Padilla can forget about sueing for damages. As the government has done with all "suspected" enemy combatants (Hamdam, Arar) it claimed state privilege because a suit could show used interrogations techniques.

So now the circle is full: You agree that the government can detain you under the MCA and deny you your right to an attorney. When the government decides to give you your day in court (probably because they want to execute you) you say that you were being tortured. The government goes on to claim that that was when you were being held on different charges and you can sue for damages. You do but the govenment claims privilege and goes on to execute.

It must really suck being Padilla right now.

# posted by

Anne : 3:37 PM

By the way, what happened to the dawg? (enter your southpark or rabies joke here)

Did he weasel out as we excepted?

# posted by

Anne : 3:40 PM

Robert Link said...

And, uh, Bart, if you didn't care what I post you wouldn't have such a need to comment all the time, eh?

As with most people here, I do you the courtesy of responding to your posts which are directed at me or my posts.

I usually start with a post commenting on the lead blog on that thread. Then is usually limit myself to responding to comments about my post(s). I do not otherwise usually respond to others' posts unless they make an interesting point.

Thus, if you wish me to ignore you, the best way is to stop directing posts to me. However, you cannot seem to stop asking me questions. My work educating you never seems to be done....

Which words in the text of MCA give you the right to a speedy trial or to have anyone bring forth any kind of evidence on your behalf in absence of a trial?

The Constitution grants me those rights. The MCA need not repeat them and does not take them away.

Last I heard, from why-owe-ewe, was that under MCA "we" can keep "enemies" without trial indefinitely...

This is a lie. Under the centuries old law of war, we may detain alien enemy combatants for the duration of a conflict. Unless al Qaeda or the Taliban surrender, this could be a multigenerational war and the detentions could be an effective life sentence.

... considering the due process rights absent even once such a commission convenes.

Have you even glanced at the MCA, nevertheless read it? The MCA establishes multiple pages of due process rights for alien unlawful enemy combatants tried by military commission, including appeals of convictions all the way to the Supreme Court. These due process rights are less than what a citizen or a lawful enemy combatants enjoys, but far more than unlawful enemy combatants have been provided for nearly all of our history.

Traditionally, the enemy dressed in civilian clothing or our uniforms was given a cursory battlefield determination whether he was an enemy combatant followed by a quick execution. Now they get formal status hearings before military judges with counsel followed sometimes by trials with a wide range of due process rights.

But I might remind you that you only addressed this question at all because I called you a coward, my friend, for avoiding it the first three times I asked.

No, you either did not like or could not understand the answers I have given. Indeed, I have provided you with the above answers to your above questions or false statements on multiple occasions.

# posted by

Bart DePalma : 3:54 PM

Bart,

You call my statement a lie then make my point for me; passing strange. The "war" on "terror" is as indefinite as it gets; even your "multi-generational" estimate is literally indefinite. So, uh, maybe you need to look up the defnition of lie?

Equally strange that you should be looking to the Constitution as a source of rights under MCA, which authorizes a President, Secretary of Defense or their designates to apprehend and imprison suspects on any or no criteria, with no oversight and no right of habeas corpus. I have indeed read and re-read the text of the MCA; that's why I keep asking you for the parts that you seem to have seen which no one else has read, like where it allows your family to present evidence of your citizenship (much less your innocence) prior to a commission being convened, and likewise the part that requires the government to ever convene such a commission rather than holding for a de facto life sentence (to use your words again.)

Since you just can't seem to help begging that particular question,how's about you don't bother doing me any more such "courtesies." I wish to Heaven this blogger app had a kill filter; we'd bother each other so much less.

cf Bart: The US can legally hold alien enemy combatants for the duration of the conflict. Given this will most likely be a multi generational conflict like the Cold War, this detention is effectively a life sentence. Thus, the only reason to go through a trial is to impose a death sentence.

# posted by

Robert Link : 6:17 PM

This is the greates set of tools ever:
a troll blocker based on java script. It filters out posts by users you define, so you don't have to be bothered reading them over and over.

Works if you have firefox 2.0:
Step 1: download and install greasemonkey (https://addons.mozilla.org/firefox/748/
Step 2: download this trollblocker
http://snowplow.org/martin/greasemonkey/
Step 3: open balkinisation and use the kill or hide function
Step 4: change the code to have fun. In my world I reduced Bart to always saying "I like pie". From now on Bart, I agree with you!

# posted by

Anne : 7:38 PM

Anne,

I am in your debt; that's the best greasemonkey script ever---and not a second too soon.

Peace.

# posted by

Robert Link : 8:13 PM

And for truly having fun, try to replace the content with something funny.

Now I finally understand all the pie jokes over BalloonJuice

# posted by

Anne : 1:43 AM

Exactly how I said it

would be. Enemy combatants can't see a lawyer because than they could talk about the special interrogations.

As I said now the circle is full: the government claims that there is no more habeas, in criminal proceedings torture should be disregarded, in the Combatant Status Review Tribunal torture was already disregarded (page 9 and further, and for our trolls: check out the public transcripts of the hearings for "impartiality").

And the best one: people can be withheld a lawyer until they are scheduled for a trial before military commission.
Maybe a trial is the plan for the 14 at Guantanamo, but for the others? No way. So no lawyer for them... For the rest of the war in which there will be no end. Just dandy!

# posted by

Anne : 8:11 AM