Funny, if parents placed children in such conditions, it would be called child abuse and neglect, and they would be arrested on the spot.
 

Yes, I saw this earlier. It gives the lie to claims, such as Richard Posner's, that psychological "stress" does not meet the threshold of being "torture." The focus on physical abuse - whether one is a proponent or opponent of torture - misses much of what is morally significant about torture.
 

I couldn't take that for even one week without going nutty.
 

Whatever, dudes. Was he treated worse than Fr. John Geoghan?
 

Sean: Whatever, dudes. Was he treated worse than Fr. John Geoghan?

Sean, isn't "the right" supposed to be the supporters of absolute right and wrong? Is torture right or wrong? Or does it depend on who is torturing whom? Why is moral relativism a dirty word to use for others but a perfectly acceptable policy for you?
 

This comment has been removed by a blog administrator.
 

This comment has been removed by a blog administrator.
 

All that has been offered to date are the allegations of Padilla's attorneys in filings.

Allegations are not evidence.

Does anyone have any actual evidence proving even one of these claims? Tellingly, the defense has provided none.
 

burnsbesq said...

You can, if you choose to do so, take issue with the admissibility or the sufficiency of the evidence to establish the governmennt conduct described in the mation. You can also, if you choose to do so, argue whether the government conduct is sufficiently outrageous to warrant dismissal of the indictment against Mr. Padilla. However, to state that there is no evidence is simply erroneous.

However, to state that there is no evidence is simply erroneous.

When I speak of evidence, I am speaking of admissible evidence subject to cross examination in a court of law. If my memory of federal law serves, Padilla's affidavit for the limited purposes of this motion does not waive his right to silence and, thus, none of these allegations can be cross examined and confirmed.

You appear to be contending that Padilla's affidavit is sufficient evidence to at least bring this motion. I would observe that Padilla did not offer any affidavit in support of his initial brief until the government pointed out that fact to the court in page 15 of its response. Even with the belated affidavit, I find persuasive the government's argument that Padilla has not offered any evidence which may support this motion.

Padilla’s claim of torture is unsupported by evidence of any kind, let alone evidence proving his allegations or demonstrating “outrageous” government misconduct. He submits no records, no affidavits, no testimony from himself or any other witness. Even if this Court possessed the authority to dismiss an indictment outright based upon extreme and prejudicial mistreatment of a defendant while in military custody prior to his indictment, such relief should not even be considered unless the defendant meets a basic evidentiary threshold. For example, courts routinely require defendants to meet such a threshold before considering allegations of improper prosecutorial conduct, and will deny motions to dismiss on that basis without further inquiry in the absence of such proof. See, e.g., Wade v. United States, 504 U.S. 181, 186 (1992) (defendant claiming unconstitutional prosecutorial motive in violation of the Fifth Amendment must “make[ ] a substantial threshold showing” of such a violation; conclusory assertions “will not entitle [him] to a remedy or even to . . . evidentiary hearing”); see also United States v. Apperson, 441 F.3d 1162, 1192 (10th Cir. 2006) (dismissal of indictment because of “outrageous government conduct” unwarranted where motion to dismiss was “woefully lacking” in evidentiary support); United States v. Cannon, 88 F.3d 1495, 1501 (8th Cir. 1996) (dismissal of indictment on due process grounds was unwarranted where motion to dismiss “lack[ed] evidentiary support”). The total absence of any evidence supporting his allegations is a separate and distinct ground to reject this unfounded motion without further inquiry.

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

The belated affidavit does not provide any testimony at all by Padilla, but merely says that his attorneys' previous allegations are true.
 

burnspbesq said...

More silliness.

Do you want to have a polite and reasoned conversation or, like arne, are you here to engage in snarky name calling? I will give you the benefit of the doubt that your intent is the former and attempt to continue this exchange.

The evidence presented by way of affidavits supporting a written motion is submitted, at least in part, for the purpose of allowing the court to make a threshold determination as to whether sufficient grounds exist to justify having a hearing.

I understand the purpose of the motion was to engage in a fishing expedition to obtain actual evidence of the use of coercive interrogation techniques on Mr. Padilla in order to shape the potential jury pool with the resulting media reports. I so posted weeks ago here and elsewhere.

However, the fact that the defense is on this fishing expedition to obtain evidence just further reinforces the Government's argument that Padilla is offering no evidence at this point.

And surely no one will have failed to note the Catch-22 quality of the government's argument in opposition to the motion. Of course there are no witnesses(other that the guards, of course, and they can surely be expected to either perjure themselves or invoke their Fifth Amendment privilege against self-incrimination): that's the whole point of solitary confinement.

Padilla is free to testify under oath and subject to cross examination. That is admissible evidence as noted by the Government. Indeed, defendant testimony is generally the basis for these motions and appeals before they are almost uniformly denied.

If you're so stinking sure that the government's conduct is blameless, why are you so terribly afraid of a hearing?

I am not afraid of anything. Padilla's proper remedy for any improper treatment is a civil suit against the government. If discovery under such a suit reveals that Padilla was subjected to coercive interrogation techniques (which would not at all surprise me), then let the legal chips fall where they may. However, even if such interrogation occurred, that does not constitute a "get out of jail free" card for Padilla under the law.

Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Afterwards, Padilla will have his choice of various leftist legal groups who would like nothing more than provide a free civil suit against the government on his behalf.
 

Bart: I am not afraid of anything.

Hah. More than anything you are afraid of being ignored as the irrelevant vandal you have showed yourself to be these many weeks. But I suppose you meant that rhetorically.

Bart: Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Interesting. When did you come to this common sense view? After the gov't tucked tail and gave up on it's absurd and obscene attempts to try him by military commission?

More interesting, of course, is that your real reason to make a statement of seeming agreement is to toss a barb belittling the legitimate pursuit of civil and human rights.

BTW, my dear black-and-white idealogue, which part was it of the MCA that lets a wrongfully detained citizen prove their citizenship, thereby wriggling out of designation as AUEC? Or are you ready to admit no such provision exists? Or will you slink away from this thread so as not to publicly admit your dishonesty on this and so many other matters?

Hmm, guess it's time to install the killfile script on this browser...
 

This comment has been removed by a blog administrator.
 

until UU., the president of vice, alberto g, & condeleezzaliesalot et al, get removed from office pending indictment for war crimes, crimes against humainity, treason, obstruction of justice, and all-around sculduddery, there is no 'rule-of-law' in these once great united states
 

More on Padilla, as well as the similar (albeit shorter) experience of Donald Vance cam be found here: A Nation of Hypocrites
 

This blog provides a valuable public service. The law professors who post here provide consistently accurate, insightful commentary on contemporary legal issues. Non-lawyers can learn here what the legal news of the day really means.

For months I've lurked in the threads on this blog, reading the sophistry spouted by "Bart DePalma." I'm going to respond this one time.

As you are fully aware, Mr. DePalma, if you are a lawyer as you claim to be, an affidavit or "declaration" (ie a statement under penalty of perjury that the declarant knows the facts alleged are true) is evidence. The cases cited by the Government, in the excerpt you quoted, almost certainly involve alleged misconduct (e.g. racially biased charging practices) of which the defendant has no first-hand knowledge. Padilla, by contrast, knows what happened to him. The testimony of the defendant is weighed and his credibility evaluated in the same way as that of any other witness.

Various federal statutes and federal court rules require a party making a motion to submit evidence in support of the motion, or to "verify" (swear to the truthfulness of) the factual statements in the motion, or both. The purpose of these requirements is to screen out motions that have no factual support and therefore do not merit an in-court hearing. The federal courts around the country vary in the degree to which they enforce "verification" requirements in motion practice. For a long time, the federal district court in which I practiced did not enforce that requirement. If the defense lawyer as an officer of the court made factual allegations for which the defendant clearly was a source, that was good enough to get the defendant an evidentiary hearing. Recently the courts began requiring verifications. No big deal: the defendant signs a verification, and he gets his hearing.

What may have happened in Padilla's case is that the defense followed local custom by filing the motion without a verfification; the Government (DOJ lawyers from DC, presumably) insisted on compliance with the letter of the law; and the defense complied. Or maybe the defense lawyers submitted the motion without a verification because they had to meet a court deadline and they didn't have immediate access to their incarcerated client, so they filed the verification later. The point is, the timing doesn't matter. Its enough that they complied.

You suggest that Padilla has not presented "evidence" until he's testified "under oath and subject to cross examination." How, exactly, is he supposed to do that before the court holds the hearing that he's asking for? Even if he chooses not to testify at the hearing (and you have no way of knowing whether he will), the Government may be able to call him as an adverse witness and cross-examine him. He's probably waived his privilege for purposes of the litigation on this motion, though not for trial on the merits.

The legal profession has a dark side. There, lawyers use the language and conventions of their craft, and the prestige of the profession, to create false veneers of justification for illegitimate conduct. John Yoo is the most obvious contemporary example.

Mr. Yoo is probably motivated by status and power. I don't know what your motives are, Mr. DePalma. My educated guess is that you're just a two-bit narcissist who became so nfatuated with the power of his own mind that he lost his moral compass along the way. I hope the non-lawyers who frequent this blog see you for what you are.
 

phoenix lawyer, DePalma is as transparent as a right wing troll can be.

I could see he was a fraud and I am but a lowly Unix Admin.

Nice slap down.
 

phoenix lawyer, DePalma is as transparent as a right wing troll can be.

I could see he was a fraud and I am but a lowly Unix Admin.

Nice slap down.
 

We all enjoy a good smackdown of mr DePalma every now and then. And especially on the merits. It is hard to confront the disingenious way Mr DePalma argues, simply because he makes so many of them. He contradicts himself every three other threads, but it is such hard work going through all the threads pointing them out everytime knowing that he won't respond on the merits anyway.
 

Robert Link said...

Bart: Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Interesting. When did you come to this common sense view? After the gov't tucked tail and gave up on it's absurd and obscene attempts to try him by military commission?

This is really basic standing law under the Constitutional - US citizens enjoy constitutional rights, alien enemy combatants do not. Padilla is a citizen.

I will ignore the rest of the snarks in an effort to maintain the spirit of comity between.
 

anne: ...it is such hard work going through all the threads...

True, but I don't think it's necessary. I suspect a cut-and-paste of his "I'm a black-and-white ideologue" should suffice, once or twice per thread. Bart has made no pretense of having any goal other than to persuade others to his world view, regardless its tenuous relationship to any verifiable reality.
 

Yeah, but in order to quote that, I should start reading his stuff again (which I do every now and then when I happen to find myself behind a computer without killfile)!

I actually think that trolling is more a google thing: change the truth by writing your version as many times as possible so that it comes up first in The Google. Bart does not try to confince readers, he is trying to propagate to uncareful newcomers
 

One small note on evidence in Padilla: while there has been no hearing so nothing beyond affidavits have been supplied, there will most certainly be more evidence produced. One look at the videotape of Padilla in blackout goggles and earphones being taken to get a root canal should be enough to corroborate the information in those affidavits. In addition to which, the government is not denying that they did these things (as far as I can tell) only that their treatment of Padilla does not constitute "mistreatment." I believe one government official speaking on the record said that the government's only goal was to permanently incapacitate Padilla whether by imprisoning him or rendering him unable to function by some other means.
 

"Bart" DePalma makes a basic error of law:

This is really basic standing law under the Constitutional - US citizens enjoy constitutional rights, alien enemy combatants do not. Padilla is a citizen.

Aside from the fact that this should be "alleged alien enemy combatants, "Bart" is simply wrong on the law. Constitutional rights are present for all "person[s]" to whom the jurisdiction of U.S. courts extends and who fall into the category of "person[s]". For instance, an alien has the same rights in a U.S. criminal court against self-incrimination and double-jeopardy as does any U.S. citizen.

There is no codicil to the Fifth Amendment that excludes "[alleged] alien enemy combatants" from the Fifth Amendment protections given to all "person[s]" so situated.

The same applies to the First and Fourth Amendment (and arguably the Second).

"Bart"'s pretension that the Constitution only applies to U.S. citizens is simply wrong ... but he continues to flog this dead horse because his line of argument depends on this false premise.

Cheers,
 

"Bart" DePalma said:

I will ignore the rest of the snarks in an effort to maintain the spirit of comity between.

Transalted from BartSpeak into English:

"I will ignore the other comments were I -- embarrassingly -- got my legal keister kicked."

"Bart", incomprehensibly clueless on basic matters of civil procedure (particularly for a supposedly practising lawyer):

Padilla is free to testify under oath...

Affidavits submitted under penalty of perjury suffice, as "anonymous" points out.

Cheers,
 

"Bart" DePalma is not just a lawyer, but a mind-reader as well:

I understand the purpose of the motion was to engage in a fishing expedition to obtain actual evidence of the use of coercive interrogation techniques on Mr. Padilla in order to shape the potential jury pool with the resulting media reports.

Two can play that game: I have divined that the purpose of "Bart"'s frequent emissions of noisome efflux pretending to be legal scholarship here is to muddy the waters of one of the finer legal blogs around, and to throw as big a monkey wrench as possible into scholarly and serious discourse on the various excesses and illegaities of the Dubya maladministration.

QED.

Cheers,
 

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