Balkinization  

Sunday, August 19, 2007

The Padilla Verdict

Marty Lederman

Several readers have written to ask what we think about the guilty verdict in the Padilla case.

Our colleague Scott Horton, who has been a one-man force of nature blogging over at Harper's, with 723 posts in under five months (!) -- virtually all of them unique and worth reading, not only on the torture scandal, but on numerous other matters of statecraft (Gonzales, the Siegelman prosecution, the war, etc.), not to mention philosophy, literature, painting, and music -- has the definitive, comprehensive post. Taking that together with Adam Liptak's piece in the Times -- about how the government's theory of the criminal charges presages a vastly expanded notion of criminal conspiracy -- there's really not much more to add. Perhaps, time permitting, I'll update this post with a few thoughts a bit later, but do yourself a favor and go read Scott and Adam.

Comments:

I have read and digested the seemingly unending amount of analysis, conjecture, theorizing, and rhetoric surrounding Mr. Padilla's "arrest," detainment, trial, and conviction... and it really does all seem to point to the basest and most vile totalitarian and Orwellian tactics this country has ever seen.

Surely it can't be this bad... right? Is this really the end of the Republic? Can educated and mature individuals in the Justice, State, and Defense Dept. actually be working off of the play-books of 1984, Stalin, and the S.S.? Or has this all been some sort of tragic, terrible mistake?

Must I really leave the country out of disgust? And what good will my American law degree do for me then?
 

From Professor Horton's post:

An attorney general should not be concerned about the monthly fluctuation of public opinion polls. He should be focused on justice.

There are aspirational ethics and then there is reality. I have yet to see a prosecutor's office (including those for which I worked) which is not political to come extent because either the prosecutor is elected or the executive who appointed the prosecutor is elected.

I personally have no problem with the AG taking public credit for capturing an American al Qaeda traitor. However, the AG should know better than to allege charges for which he or she cannot present evidence because the sources are classified. The AG should have been satisfied with correctly identifying Padilla as part of an al Qaeda cell.

And that press conference and the relentless hype that followed it obstructed the pursuit of justice in the Padilla case. It showed a failure to adhere to basic rules of prosecutorial ethics. And beyond that, it was simply unwise.

I’m very troubled by the remark of one juror in the case, who told the New York Times “that she had all but made up her mind before deliberations began.” The key problem with prosecutors who sell their case to the public through press conferences—as was done in this case with an almost unparalleled vengeance—is that they prejudice the jurors. That’s a point which defense counsel will likely test on appeal and perhaps in a motion for judgment notwithstanding the verdict.


As opposed to the defense using a willing and credulous press to poison the jury pool with wild and unsubstantiated allegations of "torture?"

Goose and gander.

What is equally disturbing is that so many legal scholars dismiss without a second thought the government charge that Padilla was part of a dirty bomb plot because the government has not presented evidence, but accept at face value Padilla's uncrossexamined, uncorroborated and categorically denied claims of "torture."

It appears that our legal academia shares the same politicization of our justice system.

Pot and kettle.
 

From the NYT article:

“It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap,” said Peter S. Margulies, a law professor at Roger Williams University who has also written on conspiracy charges in terrorism prosecutions.

Is it really?

The purpose of terrorism is to kill, maim and kidnap.

The only reason to train as a terrorist is to practice terrorism.

Therefore, the intention to train as a terrorist can be reasonably viewed as the intention to to kill, maim and kidnap in the future. The intent here surely cannot be reasonably assumed to be charity and good works.

I would suggest that it is unreasonable to require that Padilla had formed a mens rea to perform a particular terrorist act while he is seeking training as a terrorist.
 

This comment has been removed by the author.
 

"It appears that our legal academia shares the same politicization of our justice system."

As Colin Clive said in Frankenstein: "Oh, Igor, leave it alone.."
 

I have led a prosecutor's office and we did not merely aspire to those ethics, we lived them. I did not allow my prosecutors to twist the law or procedures to their benefit. We played by the rules and acted in good faith to achieve a just result in each case, period. All that requires is good leadership and a firm understanding of one's role. It is amazing what a positive effect setting such an example has on your law enforcement agencies as well. It sounds like some of us have worked for folks who lacked such character.

Nobody is using Padilla to establish that he was tortured. They are using the government's own statements. That should hardly be characterized as a "politicized legal academia" by any person acting in good faith. Reasonable minds may differ about whether what happened to Padilla was somehow justified. But let's please stop levelling foolish and baseless allegations about people whose opinions differ from our own on those points.

Horton's larger point on abusing the powers of government is quite valid. In my experience, it happens all the time. The people who do it believe themselves to be answering to some higher duty. Often, they do the wrong thing for the right reason. Of course, sometimes people do the wrong things for the wrong reasons - because they can (whether they should or not).

Government lawyers who see their clients as the individuals they advise rather than the institutions which they serve are the problem. They twist the law to achieve their masters' purposes rather than engage in good faith interpretation of the law - giving their masters advice they need to hear whether they want to or not. Of course, it takes guts and ethics to do that. It takes a courageous leader to allow it. Only a coward fires or marginalizes people who are trying to do the right thing.

In addition to prosecuting the folks inflicting permanent mental damage by engaging in the "learned helplessness" interrogation approach, as Horton suggets, I would prosecute their lawyers. In fact, on Bart's reasoning, I think we could prosecute him. He clearly doesn't care to follow the law prohibiting torture and other cruel or inhuman treatment. He publicly aligns himself with the folks who are doing it and attempts to justify their actions. Therefore, he clearly is conspiring with and aiding them in their ruthless acts and should suffer punishment - whatever sentence Padilla gets will work for me.

-- TCO
 

Suppose on 9/11 the 19 hijackers had been taken into custody by airport security. Remember, they had nothing in their bags except box cutters which were not illegal at the time. However, suppose one or more decided to tell us the entire story about how they were recruited, trained, the planning, the money, everything except the details of the actual hijack plan.

The US would then not have much more of a case, or charge, than they had against Padilla. Like them, Padilla was driven by his religion to go to a camp and get military training and then special operations training to conduct attacks on "enemies of Islam".

If in both cases you have no concrete evidence of a specific attack on a specific target, then your charge is going to be some kind of conspiracy. Conspiracy is the two years of preparation before you are given the final orders. We believe that some of the hijackers did not know what they were going to do until they got on the plane. All they knew, all they had to know, is that it was a "martyrdom" operation. They were only guilty of conspiracy, like Padilla, up to the point when they stood up an hijacked the plane.

To then assert that this is a prosecution for just "bad thoughts" is plain nonsense. In fact, this is precisely the kind of unbounded stupidity that puts a complete moron like Bush in the White House. The right wing talks nonsense, the left wing talks nonsense, and the moderates have to decide which of these two collections of incompetent clowns will do the least damage.

Padilla went to Afghanistan to train with real weapons for a real attack on whatever target he was ordered to attack. This is not a vastly expanded theory of conspiracy. This is just about as tangible and overt as one can imagine. If you believe that he cannot be prosecuted until he has actually killed someone, or unless he was given a specific target that we can prove, then you might just as well line up like sheep for the slaughter. That is the kind of dangerous thinking that causes voters to hold their breath and vote for Bush under the possible misapprehension that his brand of stupidity is less dangerous.
 

The Casual said...

I have led a prosecutor's office and we did not merely aspire to those ethics, we lived them

You are the exception to the rule if you never spoke to the press about the allegations against a defendant prior to a jury verdict.

Nobody is using Padilla to establish that he was tortured. They are using the government's own statements.

Perhaps I have missed the statements from government eyewitnesses to the specific allegations of "torture" alleged in the Padilla motion to dismiss whose sole source was a belated affidavit from Padilla.

Perhaps you can provide links to these eyewitness statements? I would be particularly interested in the one which corroborates Padilla's claim of being forced to drop LSD.

That should hardly be characterized as a "politicized legal academia" by any person acting in good faith.

When various legal scholars here and elsewhere reject the government claim that Padilla was preparing a dirty bomb attack but credulously assume the truth of Padilla's allegations of "torture" when both equally lack admissible eyewitness testimony or documentary evidence, then I have a hard time assuming this dichotomy is based on good faith rather than a partisan or ideological political agenda.

As former prosecutors, you and I know better than to assume facts which are not in evidence. While I trust our military far more than the traitor Padilla or any other al Qaeda terrorist, I do not assume either the dirty bomb allegation or the torture allegation are true until I see the evidence.

In addition to prosecuting the folks inflicting permanent mental damage by engaging in the "learned helplessness" interrogation approach, as Horton suggets, I would prosecute their lawyers. In fact, on Bart's reasoning, I think we could prosecute him. He clearly doesn't care to follow the law prohibiting torture and other cruel or inhuman treatment. He publicly aligns himself with the folks who are doing it and attempts to justify their actions.

Perhaps I was mistaken believing that you would not assume facts not in evidence...

However, let us assume arguendo that this traitor is telling the truth in his motion to dismiss. None of his allegations except possibly the wild story about LSD constitute unlawful torture.

If memory serves, Padilla complained about being being placed in isolation in a cell without a window, clock, reading material, radio, TV or a mattress and being awakened by the opening and closing of cell doors. He also complained about being shackled and not bathing enough. Padilla also whined that his interrogators misled or lied to him.

NOTHING here is in the least unlawful nevertheless close to torture, which is the intentional infliction of severe pain.

Picture me rubbing my thumb and forefinger together playing the "world's smallest violin" for this traitor's hardship.
 

That should hardly be characterized as a "politicized legal academia" by any person acting in good faith.

Objection -- assumes a fact not in evidence....
 

I think the nation has had quite enough of gleeful fascists and their cheerleaders.

BTW: If you believe the above phrase is directed towards you, then chances are good it is.
 

Some points taken Bart. I realize that I am conflating different reports of interrogation programs.

In the Horton piece, I was struck by the psych's explanation of Padilla's current mental state. If that's accurate and we caused it, I don't see how you can say it is legal...even under Detainee Treatment Act standards. You may believe it to be morally justified...but legal?

Howard, you are mistaken if you think Horton is all that liberal. Talk to him about acceptible interrogation techniques and you'll find him to be somewhat balanced...or at least to the right of the NYC legal and academic circles in which he runs.

On the "bad toughts" issue, I think conspiracy is a big stretch. If there is no clear object, there can be no agreement of sufficient specificity support the charge. "Martyrdom operation" would be sufficient to sustain the charge if they knew they were going to be killing someone that day - but not exactly who or how. That's not what we're talking about here.

As I understand it, we're talking about having the intent to carry out an unspecified criminal act at some undetermined point in the future. In pursuance of that intent, he got training. I assume he also ate, slept, prayed, and did other things that "prepared" him for some undetermined operation. That's never been a basis for criminal liability as far as I know. It might be a basis for preventive detention if we develop a better system for doing that. But then how do you know when it is safe to release them?

Back to my joke about prosecuting Bart, he has stated on this blog that he thinks the "learned helplessness" interrogation techniques are useful and justified. He has claimed specific information about them from his military training or association. He claims status as a "soldier" in his blog profile, I assume meaning that he is part of the military. The military, with other government agencies, is running Gitmo and was running the brig where Padilla was held and - allegedly - subjected to the "learned helplessness" approach (as described in the New Yorker article? I am assuming that it was or was close) that led to his current mental state. In the guilt by organizational affiliation, knowledge, and professed intent world, isn't this a crime (assuming that learned helplessness as implemented is a crime of course)? If the military asked Bart to conduct one of these interrogations, it seems he would do it. Can't we convict him and lock him up now on this theory?

I don't have sympathy for Padilla's choices. I have this rediculous belief that the government should ALWAYS do the right thing - which starts by following the letter and spirit of the law.
 

In the guilt by organizational affiliation, knowledge, and professed intent world, isn't this a crime?

At least as much so as being a bad thinking, big talking, little acting member of a white supremacist organization or "patriot" militia.
 

Scott Horton loses credibility right here: "Important questions remain, therefore, concerning the mistreatment in detention of Jose Padilla. First, even as Padilla is convicted and sentenced, when will those who perpetrated crimes again him be prosecuted for their misdeeds? The two things are not comparable. Padilla was charged and has been convicted of complicity in a vaguely defined conspiracy, without his having taken any material step towards an act of terrorism. The Gonzales Justice Department will, characteristically, argue for a heavy sentence. The facts won’t justify that. On the other hand, the crime committed against Padilla is extremely serious, involving long term psychological damage. Justice calls out for a prosecution and a severe sentence in such a case."

A decent rundown of the torture allegations appears here: http://sdfla.blogspot.com/2006/10/update-on-padilla-motion-to-dismiss.html

Rough treatment sure. If the stress positions and alternating temperatures were used in the extreme, then they could qualify as torture. But, naming the techniques mentioned and claiming "torture, torture" hardly makes it so.

So, in Scott Horton's world, the rought treatment of Padilla merits harsh punishment, while Padilla who openly sought the murder of many, merits a slap on the wrist. The oh, so compelling reasoning of the liberal academic. How I love thee!
 

Btw, the rest of Scott H.'s post was fairly reasonable.
 

The Casual said...

In the Horton piece, I was struck by the psych's explanation of Padilla's current mental state. If that's accurate and we caused it, I don't see how you can say it is legal...even under Detainee Treatment Act standards. You may believe it to be morally justified...but legal?

[From the Horton piece:] Here’s a snippet from a recent interview of one of the examining psychiatrists, Dr. Angela Hegarty...


My friend, Dr. Hegarty is not just "one of the examining psychiatrists" as if she is neutral. What Professor Horton neglected to tell you is that Hegearty is Padilla's psych, she has a long history as a hired gun expert testifying in court, and the venue for this interview is the far left NPR "news" program. The trial court heard and rejected Dr. Hegarty's horror show testimony that Padilla's mind was "destroyed" and he was incompetent to stand trial.

This is another example of the utter political bias to which I was referring. In this case, the government psych was entirely ignored, Dr. Hegarty's role as Padilla's psych was not mentioned, and her advocacy interviews (which are meant to poison the jury pool) are credulously accepted as proven truth.

Imagine that you are back running the prosecutor's office and Professor Horton blows off your psych and accepts the defendant's psych's version of events as the truth on this thread. Would you consider this slant to be maybe a teensy bit biased?
 

Al Qaeda was created to train soldiers to fight the Russians in Afghanistan, and military training remained its primary function up until 9/11. So the special operations units that have been called "terrorists" started with basic training and then moved on to more specialized skills. Like any good soldier, they went where they were told to go and awaited orders.

Now the record shows that Padilla went to Afghanistan and joined al Qaeda in order to fight Russians in Chechnya. That is why he was indicted and should be why he was convicted. However, once you are in an army you don't always get the assignment the recruiting Sargent told you about. No matter what his intent during the period for which he was tried, later on he switched to a unit targeting the US and it was on a mission to attack the US that he was captured.

On the other hand, while Padilla himself did not go to Chechnya, lots of other members of al Qaeda did. So he joined an organization with the intent of helping to kill Russians, and Russians were killed by the organization, even if he himself switched objective to kill thousands of Americans.

In a civilain criminal conspiracy, the individual criminal probably has more personal choice, but when you join something that behaves like an army you should not be surprised if they expect you to follow orders. Still, Padilla was not charged for anything he did in al Qaeda, but rather for the things he did up to and including his enlistment. If he travelled to Afghanistan to be trained to kill Russians, and he enlisted to kill Russians, and he got trained, and the organization killed Russians, that seems pretty clear and concrete to me. This is not about thought. There were real attacks. There are dead victims.

Any criminal prosecution of a would be terrorist is going to be about conspiracy. Now if a bunch of people get together in a basement and just talk, or read stuff on the internet, then that is a bullshit conspiracy. Padilla went to Afghanistan, was trained in weapons and explosives, was given an AK-47, learned advanced demolition techniques. Meanwhile, the group he joined racked up a bunch of real dead victims. That's a real conspiracy. It did not matter that he could not be sure who or where or when he would use these skills to kill his own victims. The average terrorist choses a target at random based on which restaurant has the most people or the least security. If you cannot prosecute terrorists for conspiracy, then we better just shoot them down in cold blood because the criminal justice system can't do anything about them.
 

Al Qaeda was created to train soldiers to fight the Russians in Afghanistan, and military training remained its primary function up until 9/11.

Your knowledge of history is deeply flawed.
 

So, in Scott Horton's world, the rought treatment of Padilla merits harsh punishment, while Padilla who openly sought the murder of many, merits a slap on the wrist.

It seems to me that conspiracy to commit an offense deserves lesser punishment than the actual commission of one. Of course conspiracy to commit murder can be punished harshly. But the conspiracy charges here appear to be at the very limit of what the legal system will allow for conspiracy, while the treatment of Padilla -- assuming the allegations are true -- are pretty horrific. It wouldn't shock me at all if received a lesser sentence than his alleged abusers.
 

Mark Field said...

It seems to me that conspiracy to commit an offense deserves lesser punishment than the actual commission of one. Of course conspiracy to commit murder can be punished harshly. But the conspiracy charges here appear to be at the very limit of what the legal system will allow for conspiracy, while the treatment of Padilla -- assuming the allegations are true -- are pretty horrific. It wouldn't shock me at all if received a lesser sentence than his alleged abusers.

Let me see if I get this right...

An American citizen committing treason by joining al Qaeda to become a terrorist with the purpose of the mass murder of American and other civilians is less culpable than the military for throwing the traitor in solitary confinement without TV.

Amazing. Simply amazing.
 

It's shameful that an attorney would misrepresent the treatment of Padilla as having been no more egregious than "throwing (him) in solitary confinement without tv," when we know his treatment was worse than that. It's also shameful that an attorney would not be troubled by Padilla's having been arrested amid much public relations hysteria over his having intended to detonate a "dirty bomb" when no evidence supported that claim, and which charge was never lodged against him when he belatedly had his day in court, but which claim led to this American citizen's having been held in confinement for years with his legal rights stripped from him.

As goes Padilla, so go we all.
 

Robert Cook said...

It's shameful that an attorney would misrepresent the treatment of Padilla as having been no more egregious than "throwing (him) in solitary confinement without tv," when we know his treatment was worse than that.

Once again, we know no such thing. The only "evidence" of what happened to Padilla is a disputed motion by his attorneys and a belated uncrossexamined affidavit by Padilla.

Show me the evidence.

It's also shameful that an attorney would not be troubled by Padilla's having been arrested amid much public relations hysteria over his having intended to detonate a "dirty bomb" when no evidence supported that claim, and which charge was never lodged against him when he belatedly had his day in court, but which claim led to this American citizen's having been held in confinement for years with his legal rights stripped from him.

1) The dirty bomb "hysteria" occurred after the arrest and the press conference explaining the arrest. The "hysteria" did not cause the arrest.

2) We need to distinguish between the preventative wartime detention of Padilla as a enemy combatant and imprisonment awaiting a criminal trial.

When an American citizen acts as an enemy combatant waging war against the United States, then he can be properly held as a generic prisoner of war for the duration of the conflict. We did this with all the Confederates and the US citizen of German origin captured in the Quirin case.

However, I disagree with the Quirin case that a US citizen may be tried on criminal charges by military tribunal. A US citizen should only be tried for criminal charges under his or her full constitutional rights by a civilian jury in a civilian court.

The government needs to be very careful of how it handles these different situations because intelligence gained properly against a detained enemy combatant often cannot be admitted in a civilian court for a criminal trial. That is the likely situation concerning the "dirty bomb" intelligence.
 

My only issue with Horton's post was the assertion of his not "having taken any material step towards an act of terrorism."

His application was dated 7/24/00, after the African embassy bombings (but before the Oct. 2000 attack on the Cole). I think that's reasonable evidence that he was consciously seeking to join a terrorist organization.

Now, as to Howard's notions about Padilla's having really signed up to fight Russians in Chechnya ... I would be very disturbed if he'd been convicted on that basis. The American courts should not be in the business of deciding which resistance movements around the world are legitimate and which are not.

Thought question: Russia seeks to extradite Padilla to try him for said alleged conspiracy to fight the Russians in Chechnya. What do we do?
 

Sorry to double-team, but I should've explained my disquiet about the Chechnya bit. There's too much politics in who's a "terrorist" and who's a "freedom fighter" where it's a matter of guerrilla tactics against an established government.

How many contras have been indicted in U.S. courts? How many were indicted during the Reagan administration? Zero, right? How would *that* have gone down?

Where the administration of justice would be so politicized, the courts should abstain rather than participate in the injustice.
 

Howard,

Maybe I am confused (don't think by much) but I'll take a shot at this. I'm shooting from the hip and haven't taught or practiced in this area for a little while.

What it sounds like you are talking about is not (necessarily) conspiracy to commit a criminal offense. What it sounds like you are talking about is liability for joining a criminal organization. If AQ changed Padilla's assignment to a hold pattern, I don't see how you can prove any agreement - to which he is a party - to accomplish a specific crime. Not only could AQ change their minds about ever using Padilla, he might wise up and say no when the call comes.

Vicarious liability for members of a criminal organization is OK in many jurisdictions. However, that still requires punishment for a specific crime reasonably within the common purpose or design of the organization, not simply for joining the criminal organization - without more. I don't think Padilla was prosecuted for a specific crime committed by the organization...though as you and anderson suggest, maybe he could have been.

This seems to me the basis of Horton's point. Padilla certainly had the evil intent to commit a crime - some unspecified crime at some unspecified point in the future. He might even have agreed to do it. It is still a conditional agreement. IF they call on him and IF he takes a substantial step toward going through with it, then you've got him. However, to this point in our legal tradition, a conditional agreement, without more, has not been enough for criminal liability to attach. The risks of allowing that are outlined in Horton's piece and need not be repeated.

I am not fully convinced he is right. I am still thinking on it. Perhaps we could say Padilla entered the country with the intent to commit a crime. That might work as an appropriate act plus intent to support a criminal charge. The problem is whether we can show the crime he intended was going to be committed here. He could always be asked to wait here and then ordered to Canada. I'm not sure we can criminalize that here. Even if we could, it would need to be defined and punished approriately, not as some non-existent conspiracy.

The organizational theory of criminal responsibility creates jurisdiction nightmares of the highest order in the context of international terrorism...as anderson suggests. It might be a viable avenue. I'd need to think further on it.

This does not mean that we must shoot the terrorists. IF we develop a more appropriate preventive detention regime, it would be acceptable to most of the country and the world. However, it would need to be something on the order of the Goldsmith-Kaytal proposal. CSRTs do not provide adequate due process for indefinite detention. Then again, I am not sure when, if ever, you would know it was safe to release someone who has been detained. Like the criminal parole system, release will involve some risk.

On this note, I intend to return to my previous, more casual, status. Thanks for the stimulating discussion. I hope I have added to it.

Best to all,

-- The Casual Observer
 

Up until July 24,2000 Padilla was a civilian and a US citizen. He commited crimes during this period for which he has just been convicted. Between July 24,2000 and May 8, 2002, Padilla was an enlisted soldier in the armed forces trained, supported, and commanded by al Qaeda. On May 8, 2002 he was taken into custody at O'Hare airport on a material witness warrant by FBI agents in possession of his captured enlistment papers. He was taken to Manhatten for questioning about his al Qaeda military service. During questioning he disclosed that he was still an active duty soldier and that his trip to the US was a military mission assigned to him by his commanding officer (KSM). He was even flying on a ticket paid for with al Qaeda operating funds given to him for the purpose.
So on June 9, 2002 he was transferred to military custody as an unlawful combatant, that is an enemy prisoner of war who, by attempting to cross lines of defense out of uniform as a spy, is not entitled to the protection of the Third Geneva Convention. The next day, Ashcroft held a news conference and gave the dirty bomb story.

Padilla talked to other members of al Qaeda about dirty bombs, but only during his two years as a soldier. The dirty bomb story was not a "charge" because you cannot charge a soldier with planning to bomb anything. Soldiers shoot people and they blow things up. That is what soldiers do. You cannot charge Padilla criminally for planning military operations when he was serving as a soldier.

The government needed no charge to hold Padilla in military custody as an unlawful enemy combatant (prisoner of war not protected by Geneva III). During WWII, 435,000 Axis prisoners of war were held without criminal charges. The first such prisoner was the captain of a mini Japanese submarine that washed ashore in Hawaii the day after Pearl Harbor. It had all sorts of explosives and had been intended to blow ships up during the attack. Nobody claimed that there was hysteria because the press noted that this particular prisoner had explosives and intended to bomb something. That is what subs do. Nobody in 65 years has been foolish enough to claim that the government did something wrong by holding him throughout the war even though they never charged him with a crime for planning to blow up ships. It is only a crime for a civilian to have such plans.

Padilla wasn't "arrested" on June 9, 2002, he was transferred to military custody to be detained as an enemy prisoner of war. He was not charged with a crime for anything he did after July 24, 2000. Whether the dirty bomb story was accurate or inaccurate, it had nothing to do with the legal framework under which he was detained as an enemy soldier in military custody. The government did nothing wrong by not charging someone who was not a civilian at the time with something that was not a crime for a soldier to do.

If you want to argue that a POW, or maybe a POW who happens to also be an American citizen, or maybe a POW captured as a spy who happens to be an American citizen, deserves judicial process that Padilla never got, then get Congress to pass such a law. During WWII Huber Haupt, an American citizen and German soldier captured in Chicago while acting as a spy, had his case reviewed by the US Supreme Court, and they found no such requirement for process to be part of the Constitution or laws of that time. However, if you insist on charges for things done after July 24, 2000 that apply to Padilla while he was held in military custody, the only charge that ever could or would have been presented would be "crossing lines out of uniform" (being a spy) and since US Citizens today (unline 1942) cannot be tried by military tribunal, this charge could only be brought against Padilla in a US Court Martial.
 

I see that Howard and Bart are doing yeomen's work on the Padilla issues -- good job, guys.
 

P.S. to s.q.e.w.:

In addition to leaving the United States, may I suggest you stop into the closest U.S. Embassy or consulate office and formally renounce your citizenship?
 

Casual:
"Perhaps we could say Padilla entered the country with the intent to commit a crime." Since Padilla was only criminal charged for things up to July 24, 2000, what he did two years later when entering the US on a military mission (not a crime) cannot be part of his pre-enlistment criminal conspiracy. The criminal charge has to sink or swim based on his original intent to harm Russian civilians and his actions up to and including his enlistment.

However, once we get the actual charges clear, I will not then argue about whether the charge and conviction were based on good law. The government obviously believes that joining a terrorist military organization is different from joining a simple criminal organization. I leave that to others to debate.
 

It's been a while since I read Padilla's indictment, but wasn't he charged with conspiracy to murder, maim or kidnap U.S. NATIONALS overseas as well?
 

That's what I thought. Here's the indictment:

http://news.findlaw.com/hdocs/docs/padilla/uspad111705ind.pdf

And, here's the actual verdict -- as to Count Three, the jury specifically found that Padilla's participation in the offense continued after October 26, 2001:

http://news.findlaw.com/hdocs/docs/padilla/uspad81707juryverdict.html
 

FYI, Count Three was for "Material Support for Terrorists", in violation of 18 USC 956(a)(1) and 18 USC 2339A(a) and 2.
 

The indictment for all three suspects covers a period beginnning no later than Oct. 1993 continuing to Nov. 1, 2001. However, the enumerated actions in the indictment stop for Padilla with July 24, 2000 and all subsequent mentions of him are statements by the other defendents concering his location. While the jury could certainly find that his participation extended past that point, he was not specifically charged by the government with doing any particular act after enlistment.
 

One more note for you then Howard. We can argue all day about whether we may declare and use war powers against a non-state entity under international law. (We clearly can - in Afghanistan - as a matter of domestic law under the recent Sup Ct cases.) If the crips were to use recruiting papers, "declare war" on their local police or government, and use sporadic acts of violence against the government and civilians, I don't think we'd be having this conversation...even if they hijacked a plane.

Be that as it may, applying a war paradigm as you suggest results in Padilla being amenable to prosecution as a saboteur, not a spy, that is - IF we can prove that he was going to carry out an act of sabotage in this country.

Beyond that, I agree that he can be preventively detained. We cannot equate the precedent you cite with someone acting on behalf of a non-state entity with whom "peace" cannot be negotiated.
The detention regimes under GC3 and GC4 were never intended to cover armed conflict with a non-state entity - only CA3 potentially applies.

The security threat detention regime under GC4 is most analogous. Under it, Padilla is presumptively a civilian. You cannot convert AQ into an "army" and Padilla to a "soldier" and legally equate him with WWII saboteurs. You can argue that they are analogous, and they are. But the due process required for Padilla's detention should reflect the differences between a saboteur acting on behalf of a state entity and one acting on behalf of a "shadowy" non-state entity. The process should be adversarial, not one-sided. Padilla is an easy case. I am more concerned about those who are being held after CSRTs based on coerced, secret testimony and who are not able to call witnesses on their behalf.

I did not say preventive detention was not appropriate. I just have concerns that our process is not fair enough to justify it indefinitely.

IF it is so appropriate, I am guessing we should have used preventive detention against those in "God's army" who were engaging in random acts of terror against abortion clinics. The executive branch could have brought them in, extracted confessions, then held them as threats to society. I wonder why we didn't....

To date, the Sup Ct has only decided that military detention is permissible under the AUMF and that some process is due...not that CSRTs were enough. Given the chance to consider the question, I suspect they might have misgivings. We may never know if the political branches continue to cut the courts out of the process.

Cheers!

--TCO
 

The Casual said...

I did not say preventive detention was not appropriate. I just have concerns that our process is not fair enough to justify it indefinitely.

There is a very good argument that Padilla as a US citizen (as opposed to a foreign enemy combatant) has the right to a habeas corpus hearing before a civilian court to determine if he was properly designated as an enemy combatant for the purpose of wartime detention. Because we are not dealing with tens of thousands of citizen enemy combatants as during the Civili War, there is no real practicality counter argument.
 

Bart:

Ex parte Quirin, 317 U.S. 1 (1942) was during World War II, not the Civil War, and involved only one U.S. citizen as well. I, of course, sided with Justice Thomas's dissent in the Hamdi case ; )
 

Casual:
Six years into the war the courts have not addressed the basic rules that apply to the conflict. The al Marri decision, for example, questions whether this is a war at all and whether any member of al Qaeda can be held as an enemy combatant.

However, I cannot help but point out one important minor nuance. Padilla was arguably a soldier from July 24, 2000 up to the point where he stepped off the plane in Chicago. At that moment he became a spy and saboteur. He was captured under circumstances that render him a spy and therefore an unlawful enemy combatant (Quirin). However, his talks around the campfire about making dirty bombs happened back in Afghanistan and Pakistan when he was just an ordinary soldier and not yet a spy.

Now the US Government argues that all members of al Qaeda are unlawful combatants no matter where they are and how they are captured. Like many things, this is an initial legal position that may or may not survive court challenge. Their treatment of Padilla is consistent with a theory, even if it is not their first choice theory, that Padilla may have had combatant immunity while a soldier in Afghanistan, and that he did not become an unlawful combatant until he stepped off the plane. Thus he could still not be charged with the "dirty bomb" thing even though, by the time they captured him, he subsequently became a spy without privilege.

In all the current cases, this question of combatant privilege in Afghanistan is only important to the Khadr military commission trial.
 

Howard:

How do you KNOW that Padilla was not yet a "spy" who just happened to roast marshmellows around the campfire back in Afghanistan and Pakistan? Did Valerie Plame tell you?
 

Charles:

In military law, what we commonly call a "spy" is a agent of an enemy military commander who in time of war, out of uniform and pretending to be a civilian, passes through lines of defense to gather intelligence or commit sabotage. Padilla did not become a military spy until he stepped onto US soil and approached the Customs and Immigration counter (a de jure line of defense in wartime). Around the campfire in Afghanistan he could only be a soldier (and perhaps an "operator" as a member of a special operations unit is commonly designated).

This is different from the civilian spy, who engages in the crime of espionage. The 007 can be a "spy" from the moment he joins MI-6, but such spies are completely different from a "spy" as defined in the laws of war.
 

“It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap,” said Peter S. Margulies, a law professor at Roger Williams University who has also written on conspiracy charges in terrorism prosecutions.

Is it really?

The purpose of terrorism is to kill, maim and kidnap.

The only reason to train as a terrorist is to practice terrorism.


Missing a step in the thought process here, maybe?

"The Underpants Gnomes have a three-phase business plan, consisting of:

1. Collect Underpants
2. ?
3. Profit"

Perhaps in the interestr of discourse, our esteemed rhetorical partner will flesh out his thinking. Here's hoping for the best, folks....

Cheers,
 

Howard:

Suppose on 9/11 the 19 hijackers had been taken into custody by airport security. Remember, they had nothing in their bags except box cutters which were not illegal at the time. However, suppose one or more decided to tell us the entire story about how they were recruited, trained, the planning, the money, everything except the details of the actual hijack plan.

Hypothetical tend to make bad law; you can always choose the hypotheticals that fit your argument. That said:

If a bank robber trio gets pulled over for speeding on the way to "the job", maybe that bank robbery might have been averted as well. If the cop asked them what the masks and guns were for, and someone cracked, yes, you migth well get them for conspiracy to rob a bank as well.

But regardless, had the 9/11 hijackers been found and detained pre-flight, UI think a lot of people would have been happy with only that result, even if not a whole lot more could be proved to the satisfaction of a jury. I'd note that one nominal excuse for the loosening of Fourth Amendment protections for cases of "national security" is the purpose is prevention of attacks, and not punishment ex post facto.

Cheers,
 

Thank you for the clarifications, Howard. I understand your highly-technical definition of "spy" but I contend that same Jose Padilla purchasing airline tickets / boarding the plane overseas was a "spy" as well.
 

Howard:

Compare and contrast"

Al Qaeda was created to train soldiers to fight the Russians in Afghanistan,....

[...]

Now the record shows that Padilla went to Afghanistan and joined al Qaeda in order to fight Russians in Chechnya.


Not to mention the U.S. was perfectly happy providing the likes of Stinger missiles, and various other aid, to the precursors of al Qaeda in Afghanistan.

The only "good terrorists" are our terrorists ... until someone else buys them, or they decide to use their own initiative. Kind of the story of our county the last 100 years, as Stephen Kinzer's book "Overthrow" details....

Cheers,
 

The Casual [Observer]:

The detention regimes under GC3 and GC4 were never intended to cover armed conflict with a non-state entity - only CA3 potentially applies.

The ICRC provides notes and annotations, including on GC CA3, concerning the issues of "brigands", insurgencies, and conflicts not of a international character.

Cheers,
 

Perhaps Arne never learned to concept of "biting the hand that feeds you"? Certainly, all bets were off by the time previously-sponsored terrorists fell the WTC, right?
 

to = the
 

Also, someone in another thread claimed that the WTC fell from controlled demolitions -- I've never understood that logic -- someone in the U.S. government KNEW the planes were coming, so he / she planted demolitions? Isn't that as crazy as claiming FDR not only knew about Pearl Harbor, beforehand, but also exploded the U.S.S. Arizona himself? Or, is it that he / she planted demolitions and then personally flew both planes into the WTC in order for Bush to blame it on al Qaeda? Or, there were no planes? I mean, really, what is the logic here?
 

Charles, the Twin Towers were rapidly pulverized in a way that plane impact, fire, and gravity do not explain. Who, how, and why are separate questions.

The other physical fact you should understand is that aluminum planes don't disappear inside steel buildings. Here, we have a better idea of who -- the media broadcast faked videos. The video "September Clues" describes some of the evidence of this.

Jose Padilla was not convicted for jihad in Kosovo and Bosnia. He was convicted for 9/11, which is a outrageous and murderous fraud. Commentary on this and any other terrorism case that accepts the official story of 9/11 is irresponsible, because that story is patently absurd.
 

So, let's start at the very beginning: did planes crash into the Twin Towers? Yes or no?
 

Charles, I'm not sure this is the place for this discussion. I simply wanted to make the point that the official story is an obviously false premise yet is never examined by legal scholars discussing the "war on terror."

But to answer your question, no. More precisely, there is almost no evidence that planes hit and ample evidence of attempts to make it seem like planes hit.
 

"Almost no evidence" would include the VIDEO BROADCAST LIVE AROUND THE WORLD of the second plane hitting, right? We also have the videotape of the first plane hitting. I'm fine discussing alternative theories to 9/11 (if true, they are certainly relevant to the Padilla verdict), but you need to at least explain WHAT you think hit those buildings if not planes:

http://video.google.com/videoplay?docid=5474006551011489413
 

Jules Naudet, a French cameraman, and Pavel Hlava, a Czech immigrant, both filmed the crash of the first plane, American Airlines Flight 11, into the North Tower of the WTC. A web cam set up by Wolfgang Staehle at an art exhibit in Brooklyn to take images of Lower Manhattan every four seconds, also captured images of the plane right before and then also crashing into the North Tower:

http://www.vanityfair.com/politics/features/2006/09/wtc_photoessay200609?slide=3
 

OMG! I seriously thought I had heard just about every 9/11 conspiracy theory, but I guess not:

Apparently, the WTC was attacked by "animated CGI planes the TV networks aired" and have been lying about (I guess Vanity Fair has been lying too) ever since http://www.911hoax.com/default_Main_page.asp

Is this what you are talking about, Ningen?
 

If it is, you probably already know that "true" 9/11 conspiracy theorists are PISSED that people like you are "poisoning the well" for their own pet theories and consider you most likely NEOCONS (ah, the irony):

http://crimesofthestate.blogspot.com/2007/07/911-b-s-movement.html

This has been a fascinating read. Thank you very much, Ningen : )
 

For anyone else who wants to read Ningen's blog on the subject:

http://ningens-blog.blogspot.com/2007/04/stilldiggins-earth-is-not-flat.html
 

Ningen:

Are you an attorney licensed in any jurisdiction within the United States?
 

Yes, I am Charles. The name's Dwight Van Winkle. I'm licensed in Washington. What's your point?

My identity is not important. What's important is that faked images of planes were broadcast on 9/11. The only thing I'm ashamed of is that it took me six years to see that.

Thank you for the Wolfgang Staehle photos. I have never seen them. There is indeed an airborne object in the first photo. I don't think Vanity Fair is lying. Indeed, I think their "NORAD Tapes" article contains very useful information about the confusion that day among NORAD technicians trying to distinguish inputs from real planes and getting information from CNN.
 

Charles, I don't know what hit, if anything. Perhaps a missile caused the explosions.
 

My "point" was that you hadn't answered that question in the prior thread, after YOU brought up that you were an attorney. Given your training, then, and the amount of negative polling and coverage Bush has gotten, as well as continuing calls for impeachment, how do you account that not ONE person involved in this massive conspiracy has come forward?

As I said, I honestly had never heard of the "no planes" theory, so I am now curious how far you take it (and then perhaps we can work backwards from there): was there "no explosion" either? "No deaths"? "No collapse"? In one sentence, you doubt that "anything" hit, but it seems like you believe there were explosions at least (attributable to "missiles"). But, according to the "CGI cartoon plane" explanation, that would mean that the massive media conspiracy timing the actual explosions to the millisecond, even remembering to decelerate the CGI planes. I mean, how many people do you think would need to be involved in such a world-wide conspiracy? You don't think we are all hooked into one central computer, do you? Because, without much more of a leap, and we are into "The Matrix" type of fantasy.

Barring something like that, I can tell you one thing -- without a doubt -- I have been to ground zero myself and there are no buildings still standing. We at least agree with that, right?
 

For everyone else, I think this is the "best" explanation I've seen so far (Bush "double-crossed" the terrorists and remotely flew DIFFERENT planes into the WTC):

"The plane that hit the North Tower was not American Airlines Flight 11. It was not a Boeing 767. It was a custom-built military plane carrying three missiles that created the impression of a plane crash without leaving any wreckage. In order for it precisely to strike the correct part of the tower (in line with the bomb already planted in the east wall) it must have been flown remotely using cruise navigation. I believe a similar plane was used to strike the Pentagon.

The 'Conspiracy Theorists' have got it dead right this time. The true Flights 11, 175, 77 and 93 were indeed substituted with other planes when the transponders were switched off. Someone hijacked the hijackers to make sure the job was done properly."

http://www.serendipity.li/wot/aa11.html
 

I couldn't find the other thread and wasn't aware you had asked, Charles. Perhaps I misunderstood you. Where is that thread?

We could debate details forever, and I don't think this is the place for it. I've made my point -- the official story is patently absurd, even before you get into the physics of plane crashes and building collapses. It should not be accepted as a premise for discussion of the civil liberties v. security.

If you want, please ask your questions at my blog, in the "Summary of Arguments" post at the right top.

To briefly answer your question, the world got its information from television that day. Even many people working in television.
 

Here's the thread -- check the last post: http://balkin.blogspot.com/2007/08/theres-reason-why-we-call-it-bill-of.html
 

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