Balkinization  

Tuesday, August 14, 2007

The Rosetta Stone of the Detention/Interrogation Scandal

Marty Lederman

Jack's post below gets right to the heart of what is so important, so novel (for the U.S.), and scandalous, about the Administration's detention regime. Unlike in past conflicts, when the purpose of detention was incapacitation of actual combatants so that they could not fight against us, the dominant purpose of this detention regime is intelligence-gathering -- and that's something that the Administration has concluded can only be effective if the will, the human agency, of the detainees, is broken completely. As Jane Mayer reported last week, the essential objective is to reduce the detainees to a state of "learned helplessness," which "creates dread and dependency."

This explains, among other things, the breadth of the definition of who may be detained as an "enemy combatant" (going far beyond traditional combatants to include virtually anyone who might have actionable intelligence); the need for "disappearances," i.e., secret facilities not subject to oversight; the severe isolation and sensory deprivation the CSM story describes; the strenuous efforts to exclude judicial review; and the insistence on keeping secret any information about which interrogation techniques are legal.

In this respect, there is no more important public government document in this whole scandal than the Declaration filed in the Padilla case by Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency.

The Lowell Declaration explains, quite forthrightly, that the DIA's "approach to interrogation" is "largely dependent upon creating an atmosphere of dependency and trust" between the subject and the interrogator:
Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example -- even if only for a limited duration or for a specific purpose -- can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process.
The adjective "Orwellian" is overused these days. But if anything is eligible for that appellation, it must be the Administration's repeated mantra that its detention and interrogation regime is designed to establish a relationship of "trust and dependency." That is, quite literally, right out of 1984. [UPDATE: Just to clarify what I hope was obvious: It is not the fact that the interrogators are trying to establish a relationship of trust and dependence that is so shocking -- of course that is a standard objective of many interrogations. What is jaw-dropping and Orwellian is that they apply that benign label to the system of dehumanization and legal black holes so well described in Jane Mayer's article; in the Christian Science Monitor story; in the photos we have seen of Padilla's detention; and, indeed, to the description in the Jacoby Declaration itself.]

Contrary to Jack's suggestion below, then, the Administration did not try to defend Padilla's indefinite, isolated detention -- and the denial of an attorney and of any judicial oversight -- on the ground that "the President thought that Padilla was a dangerous man." If dangerousness had been the issue, the Administration could have simply kept Padilla detained in the ordinary criminal justice system, where he had been. As Jacoby explains, the reason Padilla was moved to indefinite military detention resembling (as Jack notes) classical authoritarian models, was not dangerousness, but instead the Administration's desire to break him in order to obtain possible actionable information about al Qaeda training, planning, recruitment, methods and operations.

The most remarkable thing about the Jacoby Declaration, in my view, is not even its casual and horrific use of euphemism, but rather that it is a public document -- indeed, a document created in order to be submitted to courts in order to persuade them that such detention is lawful and, most importantly, that it is critical to place such detentions entirely outside ordinary legal process, to a netherworld without lawyers and judges (indeed, without any contact with persons outside the "relationship" of "trust and dependency"). Jacoby again:
Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. DIA's assessment is that Padilla is even more inclined to resist interrogation than most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla.

Because Padilla is likely more attuned to the possibility of counsel intervention than most detainees, I believe that any potential sign of counsel involvement would disrupt our ability to gather intelligence from Padilla. Padilla has been detained without access to counsel for seven months -- since the [Department of Defense] took control of him on 9 June 2002. Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break -- probably irreparably - the sense of dependency and trust that the interrogators are attempting to create.

At a minimum, Padilla might delay providing information until he believes that his judicial avenues have been exhausted. Given the nature of his case, his prior experience in the criminal justice system, and the length of that has already elapsed since his detention, Padilla might reasonably expect that his judicial avenues of relief may not be exhausted for many months or years. Moreover, Padilla might harbor the belief that his counsel would be available to assist him at any point and that seven months is not an unprecedented for him to be without access to counsel.

Any such delay in Padilla's case risks that plans for future attacks will go undetected during that period, and that whatever information Padilla may eventually provide will be outdated and more difficult to corroborate.
In other words, legal process must be entirely denied Padilla so that he will come to think that all hope is lost -- that he is in a world without law or due process. As long as he even thinks that he is subject to the Constitution and laws of the United States, the "relationship" of "trust and dependency" is broken.

I, for one, found this chilling when I first saw it. Moreover, I was fairly shocked that the government was being so candid -- indeed, that the government decided to invoke this rationale affirmatively, in court submissions, as a justification not only for the indefinite, secret detention of citizens such as Padilla and Yasser Hamdi, but as part of an argument to the courts that attorneys and courts must be entirely excluded from this detention regime -- because lawyers, judges and due process are, after all, and in Jacoby's words, "external influences on the interrogation process."

The Solicitor General even placed the Jacoby Declaration in the Appendix in the Padilla/Hamdi cases, and cited it liberally in support of its argument to the Court that the Administration should be entitled to detain persons not only for purposes of incapacitation, but also for purposes of long-term interrogations.

That is why, just as the Jacoby Declaration is the single most revealing document released by the government in the conflict against al Qaeda, so, too, the single most important sentence in any of the Supreme Court's decisions in the al Qaeda cases was a stark rejection of the government's rationale -- indeed, a remarkable rebuke to the Jacoby Declaration -- in Justice O'Connor's controlling opinion in Hamdi. After explaining at length that the laws of war and the Authorization for Use of Military Force permit detention for purposes of incapacitating combatants, Justice O'Connor wrote (542 U.S. at 521):

"Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

No citation offered, because none should be needed. "Certainly."

Comments:

The Lowell Declaration explains, quite forthrightly, that the DIA's "approach to interrogation" is "largely dependent upon creating an atmosphere of dependency and trust" between the subject and the interrogator

The money quote on so much....the administration wants to create dependency and trust by isolating subjects from outside influence and knowledge. I can think of numerous examples of how this dovetails into other administration initiatives and programs, and all of them lead back to the conclusion that you should almost never trust someone who asks you to trust them. I can't tell you how many times I would hear that in fraud investigations just before I confirmed that the subject was lying. "Trust, but verify" should become "verify, then trust only what you have verified, and keep checking on it occasionally".
 

Six months before Padilla was captured the US acquired papers he signed joining al Qaeda and requesting military training. These documents were the key evidence against him in his current trial in Miami. A year before al Marri was transferred to military custody the government had his computer, stolen credit card numbers, and phoney cards he had created. In both cases the government had an open-and-shut case of a civilian crime that could be prosecuted.

However, both Padilla and al Marri were also enemy military spies of a foreign power at war with the US. As such, they were also subject to a second military jurisidiction. The administration decided to transfer them to military custody where they could be effectively interrogated.

"Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." However, if you can detain and enemy soldier or spy on sound legal ground and they also have valuable information that you want to extract, then the government will naturally hold them under the legal theory in the type of custody and under conditions that will maximize the intelligence result.

Padilla could have been held and charged with the same crime he is now standing trial for. He could have been held as a captured enemy soldier not entitled to POW status or protection (Fourth Circuit in the al Marri case found this to be true based on his armed presence on the battlefield in Afghanistan). He could have been held as an enemy military spy captured trying to enter the county on a military mission assigned to him by his commanding office while travelling on a ticket purchased out of al Qaeda operating funds (Fourth Circuit found this in Padilla v Hanft, though the reasoning is based on ex parte Quirin). The government decided to hold him in military custody, and then decided (as you quote here) to manage the circumstances of his detention to maximize intelligence.

Two separate three judge panels of the Fourth Circuit affirmed his detention on entirely different legal theories (POW on a battlefield or spy) based on different episodes in his story, and now a Federal court in Miami will decide on the criminal charge. How many different court decisions do you need to accept that the government could legally detain him?

The real question is how the govenment may treat a detainee (citizen or otherwise) after he has been properly detained on overwhelming evidence and several independent legal justifications, when he posesses information that is critical to the defense of the United States? May he be held in isolation? May he be denied access to lawyers? What treatment is allows and how may his value as a source of information alter or influence other processes?

There are real questions here. However, if you misrepresent the facts and issues, you never get to consider them.
 

The adjective "Orwellian" is overused these days. But if anything is eligible for that appellation, it must be the Administration's repeated mantra that its detention and interrogation regime is designed to establish a relationship of "trust and dependency." That is, quite literally, right out of 1984.

Actually, establishing a relationship of "trust and dependency" is right out of any instruction manual on interrogation. This is the basis of the classic good cop, bad cop routine used in every police station around the country.

The fact that police states also use the same basic principles of interrogation hardly makes those principles "Orwellian."

Think about this for a moment.

Are you really arguing that interrogators should be encouraging distrust and independence in the prisoners?

Exactly how do you propose to get actionable intelligence or much of anything else if you encourage the prisoner not to cooperate?
 

Howard:
However, both Padilla and al Marri were also enemy military spies of a foreign power at war with the US. As such, they were also subject to a second military jurisidiction. The administration decided to transfer them to military custody where they could be effectively interrogated.


If by "foreign power" you mean al-Qaeda....

Hmm, a few things clicked together. The AUMF used as justification for the original military detention. However, this should have been understood trumped by Geneva requirements for treatment of detainees of whatever stripe, and requirements for trial by already established military or civilian justice systems. The MCA was much post facto, no war was declared, and...but I don't want to rehash arguments on other subjects that have been beaten to death in previous posts (and which encouraged the trolls to breed).

Suffice it to say, I disagree with the point you are making, in that when the automatic response to what could arguably be a criminal trial is to delay and detain someone well past a reasonable time frame by playing change the rationale when faced by serious opposition is the hall mark of a fraudulent attempt to justify your case. Bait and switch should not be the method of establishing justice or national security.
 

Marty:

Is is also possible that Padilla was dangerous precisely BECAUSE he had actionable intelligence needed by the good guys to prevent another 9/11 (or worse). Have you read any of the comments, or are you going to delete these as well:

http://balkin.blogspot.com/2007/08/theres-reason-why-we-call-it-bill-of.html
 

must be entirely denied Padilla so that he will come to think that all hope is lost -- that he is in a world without law or due process.

It really is remarkable that our government would make this argument openly and without any apparent shame. It's like Jeffrey Daumer arguing that he had to cut his victims' heads off because it was the only way to fit them in the freezer.

In other words, it's an ends justify means argument in which the ends are themselves dispicable.

The government claims that it is necessary to deny all process to people like Jose Padilla. But in order for that to make any logical sense, you first have to accept that the our government's desire to completely breaking human beings (U.S. citizens!) in order to extract information from them is an acceptable end.

It disturbs me greatly that so many people see that as a worthy goal to pursue.
 

howard:

The real question is how the govenment may treat a detainee (citizen or otherwise) after he has been properly detained on overwhelming evidence and several independent legal justifications, when he posesses information that is critical to the defense of the United States?

And how do we know that he has "information that is critical to the defense of the United States"? Well, we'll know once we beat it out of him....

Hasn't the "24" argument itself been beaten to death?

"Objection, your Honour, "asked and answered...."

Cheers,
 

A.L.

I think that this behaviour has been seen before with the administration with their legal justifications (as opposed to their political planning)--they are very good at crafting tactical legal arguments to try to delay or obscure their purposes, and when these arguments are refuted, they jump to the next set, even when they don't realize that their new arguments are undercut by their previous ones.

As I have said before, when someone keeps trying to change their rationale for actions as previous rationales are shot down as illegal/immoral/unethical, you quickly come to realize that their intent, however stated, is not legal or moral or ethical. The problem with this administration and their enablers is that they can get the rules changed to give the semblance of justification to their actions, but the original actions never were.
 

"Well, we'll know once we beat it out of him" By all accounts, beating information out of Padilla is like going into a strip club, pulling out a gun, and demanding that the dancer take off her top. You are missing the entire point and can get the same result by just sitting back and waiting a minute.

KSM gave Padilla one cover story ("I was never in Afghanistan") that lasted about 10 minutes until they showed him a copy of his enlistment papers. After that Padilla wasn't smart enough to know what to do on his own, and without a lawyer to protect him he started talking and told the whole story. Of course, nothing he said could be used against him in a criminal trial, but everything he said could be used to classify him as an enemy combatant and hold him in military custody (Maranda applies only to criminal charges).

Padilla confessed while being questioned by the FBI in the Manhatten Federal lockup. If you really believe that these guys beat confessions out of suspects, well nothing I say will change your mind.

When they picked him up all they knew about Padilla is that he joined the al Qaeda military two years ago and that at some point he really pissed off Abu Zubaydah. If he had said, "Yes I joined al Qaeda two years ago but I left them last month," then they could not have held him as an enemy combatant because he was no longer an active soldier.

Instead, he told the FBI that not only was he still a soldier but that he had come to the US on a military mission assigned to him by KSM, commander of the 9/11 attack. Only after he disclosed this were they in a position to "change theory" and transfer him to military custody. If you pick up someone for shoplifting and while in custody he admits to robbing a bank last week, it is not inconsistent or a tactical ploy if you then charge him with the crime he confessed to and not the one you originally arrested him for. That's what happened to Padilla, except that when they transferred him to military custody they said absolutely nothing about what he had said and even hid the fact that he was talking and spilling his guts about everything.

His treatment once in military custody was not to "break his will." There is no evidence he ever had any will to break. He was isolated to make sure that nobody (like a lawyer) convinced him it was in his best interest to stop talking, and to concentrate his thoughts so he could remember as many details as possible. Of course, it was the same treatment no matter what the motivation.
 

howard:

Padilla could have been held and charged with the same crime he is now standing trial for. He could have been held as a captured enemy soldier not entitled to POW status or protection (Fourth Circuit in the al Marri case found this to be true based on his armed presence on the battlefield in Afghanistan)....

Padilla wasn't a "captured enemy soldier [...] based on his armed presence on the battlefield in Afghanistan". The al Marri court wasn't even deciding on Padilla, so it could hardly "find" such.

... He could have been held as an enemy military spy captured trying to enter the county on a military mission assigned to him by his commanding office while travelling on a ticket purchased out of al Qaeda operating funds (Fourth Circuit found this in Padilla v Hanft, though the reasoning is based on ex parte Quirin)....

The U.S. gummint, fearing the result of a review by the Supreme Court, moved Padilla from military detention to civilian custody, and petitioned to dismiss the appeal of Padilla v. Hanft for mootness. Hardly a sign of confidence, and for good reason.

... The government decided to hold him in military custody, and then decided (as you quote here) to manage the circumstances of his detention to maximize intelligence.

Once he was moved to civilian custody, I'd hope the torture would have ceased. We're concerned with the treatment while he was being detained by the military as an alleged "enemy combatant" (sans any finding of such other than Preznit Dubya's ipse dixit say-so, and sans even the "formality" of a CSRT as required by law).

Two separate three judge panels of the Fourth Circuit affirmed his detention on entirely different legal theories (POW on a battlefield or spy) based on different episodes in his story,...

Nope. Only one. And the gummint ran away from that as fast as they could.

Cheers,
 

howard:

By all accounts, beating information out of Padilla is like going into a strip club, pulling out a gun, and demanding that the dancer take off her top. You are missing the entire point and can get the same result by just sitting back and waiting a minute.

Back on planet Earth, the gummint didn't just "get the same result by just sitting back and waiting a minute" for Padilla to 'open up'. Had they done so, it would be legal. The use of the gun in the case of the dancer is what makes that illegal. The allegations in the Padilla motions, if true, ought to shock the conscience (and I'd note that Howard doesn't argue that the allegations are untrue, but rather that the treatment was justified). That Howard is not bothered by such is his cross to bear, and his own sin to account for in the end. In the end, Howard thinks that torture should be legal ... at least under some circumstances. I disagree (as noted by my link above).

Cheers,
 

howard:

... to concentrate his thoughts...

Euphemism city, here we come.

Cheers,
 

After explaining at length that the laws of war and the Authorization for Use of Military Force permit detention for purposes of incapacitating combatants, Justice O'Connor wrote (542 U.S. at 521):

"Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."


How is this an issue?

All of the interrogated detainees have been identified as lawful or unlawful combatants. As such, these persons may be detained as generic prisoners of war for the duration of the conflict.

The fact that we also wish to interrogate these prisoners of war does not mean that we are holding them indefinitely for interrogation.

Also, the military has routinely interrogated prisoners to gain intelligence since the Revolution. There is nothing new about doing so. Indeed, a military commander who did not have prisoners interrogated for intelligence should be relived as incompetent.
 

Ah, but General Sandra Day O'Connor knows better . . .
 

Arne and Charles: Please, let's stick to the merits and to comments that further the conversation. And to everyone: Please don't respond to provocation. I'd like not to have to turn off the comments section again. We've had some very valuable threads on the recent FISA posts, but unfortunately, especially in Jack's post this morning, the bad habits have begun to return and render the comments threads unreadable, which is a shame, because there are a few diamonds in the rough.

Thanks, everyone.
 

Prof. Lederman:

I've been studiously ignoring the major troll (and "Bart" as well). Do I get half credit?

I'm sorry if you thought I was getting off-topic, but I was addressing Howard's "24" arguments as to why Padilla ought to have been tortured here, and just bringing up certain 'assumptions' in his arguments. If you'd prefer that such type 'arguments' (and/or Howard as well) simply be ignored, I'll accede to your wishes. I guess you may be right that perhaps there's not much to discuss with a person that is of the opinion that what (allegedly, as described in these last two posts) happened to Padilla was just done in order "to concentrate his thoughts". Under the circumstances of such an assumption, there is little to argue about ... and indeed the topic is adrift.

Cheers,
 

Arne said:
Padilla wasn't a "captured enemy soldier [...] based on his armed presence on the battlefield in Afghanistan". The al Marri court wasn't even deciding on Padilla, so it could hardly "find" such.

From the al Marri decision:
In Padilla, we similarly held that the AUMF authorized the President to detain as an enemy combatant an American citizen who "was armed and present in a combat zone" in Afghanistan as part of Taliban forces during the conflict there with the United States. The Government had not been able to capture Jose Padilla until he came to the border of the United States, but because the Government presented evidence that Padilla "took up arms against United States forces in [Afghanistan] in the same way and to the same extent as did Hamdi" we concluded that he "unquestionably qualifies as an ‘enemy combatant’ as that term was defined for the purposes of the controlling opinion in Hamdi." 423 F.3d at 391.10 We too invoked the law of war, upholding Padilla’s detention because we understood "the plurality’s reasoning in Hamdi to be that the AUMF authorizes the president to detain all who qualify as ‘enemy combatants’ within the meaning of the laws that Padilla "took up arms against United States forces in [Afghanistan] in the same way and to the same extent as did Hamdi" we concluded that he "unquestionably qualifies as an ‘enemy combatant’ as that term was defined for the purposes of the controlling opinion in Hamdi." 423 F.3d at 391.10 We too invoked the law of war, upholding Padilla’s detention because we understood "the plurality’s reasoning in Hamdi to be that the AUMF authorizes the president to detain all who qualify as ‘enemy combatants’ within the meaning of the laws of war." Id. at 392. We also noted that Padilla’s detention, like Hamdi’s, was permissible "‘to prevent a combatant’s return to the battlefield . . . a fundamental incident of waging war.’" Id. at 391 (quoting Hamdi, 542 U.S. at 519)


The Padilla v Hanft decision is still the final word about Padilla. If his lawyers wanted to go to the Supreme Court to reverse it, they could have opposed the transfer. Those who disagree with Padilla v Hanft make up nonsense theories that the government was afraid to defend it.

Well, here is a decision of the Fourth Circuit issued June 11, 2007, years after Padilla was transferred to the civilian courts. It doesn't back off or reject Padilla v Hanft, but reiterates it and expands on it.

While Padilla's case is now moot, all the important issues are still alive with al Marri, and his case may yet go to the Supreme Court and given the justices a chance to decide about these important issues (or another chance to duck and avoid them if they are so inclined as they have been in the past).
 

Professor Lederman: Please, let's stick to the merits and to comments that further the conversation.

I haven't poked my head in for a few days, which at least means I can't be held to blame for any recent acrimony. But while you're making the easy bust on Arne's one-liners, you let stand inflammatorily prejudicial and illegitimately conclusory nonsense like "...we also wish to interrogate these prisoners of war ..." and "...He was isolated...to concentrate his thoughts." You seem unconcerned by the stonewalling of visitors who haven't the intellectual honesty, or rigor, take your pick, to admit they have assumed exactly that which is in question, yet you chide the folks who would confront the stonewallers on their morally and intellectually bankrupt posturing. You know darned well, Professor Lederman, the amount of noise generated by folks like Arne is in direct proportion to our host's willingness to accept as genuine discourse the barbs tossed by vandals.

I suppose that's one reason I've been glad to spend my time elsewhere of late. Not that I expect to be terribly missed during my absences, but I, for my part, miss being part of the conversations here. I just can't quite seem to accustom myself to the notion that you are so keen to ameliorate symptoms but decline to act on their cause.

However, on the same private-property theory by which you and the other hosts of this space can bounce any of us on a whim ("We reserve the right to refuse service to anyone!") so too you can place your focus as you see fit. It is your bat, ball, and backyard.

Sorry this isn't more deferential in tone, as I truly respect your work and the patriotic value you do our country by putting your work out here where "we the people" can read it rather than hiding it in the ivory tower or some K street consultancy firm. Despite my disagreement with your handling of certain matters, I remain in your debt.

Peace,
Robert
 

Hey, Robert -- no need to be deferential, really. I'm very grateful for your readership and your kind words -- and your participation in comment threads!

This is a good example, however, of what I've been trying to address. More often than not, I think Howard is wrong on the merits. But his posts are generally substantive and I think it's clear he is truly trying to respond on the merits (at least most of the time). When he takes an idiosyncratic position that you (or I) disagree with, perhaps the best thing to do is to just let it pass -- after all, it is merely the idiosyncratic view of a commenter on a blog. (Example: Howard has long argued that the TSP did not involve "electronic surveillance" covered by FISA. I think that's obviously wrong, and responded as much a couple of times -- after which it serves no purpose to respond again, because Howard's is an argument that has not persuaded anyone in the public debate.)

Perhaps you feel that one or more of his posts "lacks intellectual honesty, or rigor," or "assumes exactly that which is in question," or is conclusory, or even that it is posturing.

OK, that's fine. But so what? It's not news that many blog comments share one or more of these (and other) faults. (I assume I have some readers who think the same of some of my posts.) And other comments, from posters we could readily identify, are merely intended to provoke and posture, not to make any argument or raise any questions at all.

The thread, however, is not about Howard, or Bart, or even me. It's about the government and its treatment of Jose Padilla, and the justifications that have been offered for its horrific conduct.

Unless a commenter makes an argument that is going to have some public traction, in other words, or that raises a question that you genuinely find puzzling or worth our careful collective analysis, please simply let it go. The fact that it's not, in your view, "genuine discourse" is *less* reason to respond, not more. Because otherwise the topic of the thread becomes Howard, or Bart, or me, rather than Lowell Jacoby, or the Supreme Court, or Jose Padilla. And threads about Howard, or Bart, or me, quite frankly, are not worth anyone's time or effort.

Hope you understand. Thanks against for reading and participating.
 

"... to concentrate his thoughts...
Euphemism city, here we come"

Setting aside issues as to tone, this was not a euphemism. I really meant it. Here we have a guy who is telling you everything he knows. Why, well in part because he has been convinced that it is in his best interest, but also because his interrogators are the only human beings he can talk to. With no radio, TV, newspapers, books, or other human contact, he will do anything he can to make them happy.

Now Padilla spent two weeks with KSM, Binalshib, al Beluchi, and the rest of the 9/11 command cadre in Pakistan. Describe each person. Where where the meetings? If you don't know that, what could you see out the Window. When the phone rang, did they give a name to the person on the other end? What brand of cellphone did they use? What brand of computers? How many computers were there? (So after you capture some of them you know how many you have and how many are still missing) Even knowing what they ate for lunch and where it might have come from would be helpful in tracking down the people who, after Bin Laden and Ayman al-Zawahri were at the top of the US most wanted list.

Of course, Padilla would not remember all this at first. However, with nothing else to do, he is likely to spend his considerable free time going back over the questions he was last asked to try and remember details that he can give to his interrogators the next time they meet.

This is terrible. However, Padilla was also a traitor who was captured on a mission to kill thousands of civilians, mostly women and children, while they slept on behalf of Bin Laden. He deserved a lot more than anything we could legally do to him. The US cannot torture even Padilla. This was not torture. If it was, what part? The fact that he couldn't see anything through his window? That he didn't get the New York Times every morning? That he didn't get MTV? There is no right to cable TV in the Geneva Convention, even if he were entitled to its protection.

Maybe being denied any meaningful stimulation is worse than torture. I will not dispute that here and it is useful to the argument to assume that it is. Torture you can resist. Torture gives you something to fight against. This is nothing, years and years of nothing.

But things that are worse than torture are not torture and they are not necessarily illegal under US or international law. Maybe that is a loophole, but it is there nevertheless. If you then ask whether I think that a filthy little traitor and would be mass murderer like Padilla should be subjected to every legal means (no matter how cruel) to extract information critical to the defense of the US and the capture of the people responsible for 9/11, then I say fine. If the means are legal as the law is written now, then whatever happens to Padilla is less than he deserves. If you think this is heartless, I suggest you spend a few hours going back over the video tape of the bodies of jumpers thumped to the ground before the towers collapsed. This was not 24, this was real life, and until the KSM cadre was captured it could have happened again and again. What happened to Padilla helped prevent it from happening. What happened to Padilla is less important to me than the lives of one of the thousands of little children he came to the US to blow up. As long as it was legal, I have nothing for which to apologize.
 

Pardon me, Prof. Lederman; we do seem to have a dispute about caselaw and not just a matter of difference of opinion:

[Arne]: Padilla wasn't a "captured enemy soldier [...] based on his armed presence on the battlefield in Afghanistan". The al Marri court wasn't even deciding on Padilla, so it could hardly "find" such.

Howard cites al Marri referring to the decision in Padilla v. Hanft. That's not a "finding" in al Marri.

Yet, this is what Howard claims:

[Howard]: [Padilla] could have been held as a captured enemy soldier not entitled to POW status or protection (Fourth Circuit in the al Marri case found this to be true based on his armed presence on the battlefield in Afghanistan).

This is simply untrue. They cited the Padilla v. Hanft case for this.

When Howard tries to bolster his case for the aeternal verity of such a decision, he claims two cases:

[Howard]: Two separate three judge panels of the Fourth Circuit affirmed his detention on entirely different legal theories (POW on a battlefield or spy) based on different episodes in his story....

He provides no support for his claim that in fact "entirely different legal theories" were used (particularly, since in fact there was only one actual court decision on the issue as per the specifics of Padilla), and telescopes one decision (that was taken off the boards from any challenge, as I pointed out, by the maladministration, though this rather obvious ploy is disputed by Howard; I'll let that slide) into two. That's simply dishonest, and bears pointing out.

Just for the record.

Cheers,
 

There is no right to cable TV in the Geneva Convention, even if he were entitled to its protection.

Perhaps not. Feeding him "red herrings" may also be prohibited. But banning soccer is borderline:

GC4:

"Article 94

The Detaining Power shall encourage intellectual, educational and recreational pursuits, sports and games amongst internees, whilst leaving them free to take part in them or not. It shall take all practicable measures to ensure the exercise thereof, in particular by providing suitable premises."

GC3:

"Article 38

While respecting the individual preferences of every prisoner, the Detaining Power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners, and shall take the measures necessary to ensure the exercise thereof by providing them with adequate premises and necessary equipment.

"Prisoners shall have opportunities for taking physical exercise, including sports and games, and for being out of doors. Sufficient open spaces shall be provided for this purpose in all camps."

Betcha Padilla didn't even get the soccer ball that Tom Hanks had....

Cheers,
 

Marty:

You should not assume that I actually believe everything that I say here. I myself do not assume a lawyer in court actually believes everything he argues. Generally, I take the position nobody else takes provided that it can be shown, not that it is true, but that it cannot be disproved, discounted, or ignored. You will note my remarkable enthusiasm here for the al Marri decision that elsewhere I have dismissed as a complete crock. I do not expect that anyone will agree with me, but ask only that you object when something can be conclusively disproved or is clearly wrong. In a lot of cases I am just proposing that you look at the question from a different angle.

If it is possible that I am right, but you don't think so (as with the question of whether the NSA not withstanding the AG and Bush decided to conduct the TSP legally just to cover their ass) then I have done all I intended. There is a little bit too much self-assurance in the world, and if it goes unchecked then the next moron will stumble into the next Iraq looking for the WMDs he was absolutely sure had to be there. I don't intend to prove absolutely that they aren't there, but it would be awfully helpful if decision makers gave some of their assumptions a second thought.

Arne:
I suppose I let my opinions slip through without being declared. I cite two separate decisions because Padilla v Hanft as defined by the al Marri panel is not the actual Padilla v Hanft decision written by Luttig. The latter decision had to "agree" with the prior decision of the same circuit while coming to a completely opposite position on the key point of law. So [as I see it] they rewrote the prior decision so that it came to its conclusion based on a different argument than the one Luttig actually wrote. Thus there were "two decisions" about one case.

What is unambiguously important is that two months ago, long after everyone else in this blog asserted with absolute certainty that the government had run away and the Padilla decision was now meaningless, here comes a new decision that cites it as controlling law. Even agreeing with you that this is one case, it is a case with two dates and what is important is the new June 11, 2007 date.
 

Arne Langsetmo said...

Prof. Lederman: I've been studiously ignoring the major troll (and "Bart" as well). Do I get half credit?

Please give arne full credit. You have done me a great service.
 

One of the latencies in the obfuscation or sheer disregard of the import of the regime of unhuman treatment is the effect upon interrogators, particularly in the sense that the latter form a cadre of people trained in permissive abuse of humans. After the conflict ends, and if it does, the society which bred the abusers must reincorporate the torturers in civil life. The military in the future may decide it favors the blend of half volunteers, half mercenaries. Who are the best torturers? What futre despotic military person would be inclined to cultivate an extralegal torture squad militia?
 

Professor Lederman: The fact that it's not, in your view, "genuine discourse" is *less* reason to respond, not more.

Touche. But your view seems to rely on some kind of maturity, or self-confidence, or emotional distance, or role-based insulation (clutching at straws here) to which, I for one, can only at present aspire. Further speculation along those lines is reserved for other channels.

Peace,
Robert
 

Actually, JohnLopresti, that impact was exactly part of the "cost" in my cost-benefit analysis that was deleted by Marty Lederman in the Jane Mayer thread below. So, don't blame me for that position being silenced.
 

Professor Lederman,

I am inclined to agree with Howard's latest comment. People like Howard or Bart are best seen as surrogate lawyers, arguing the case for the Administration. It the Administration's positions are worth refuting (and given the power they hold, the Administration's arguments, no matter how specious, must be taken seriously and refuted), then I believe the arguments of their surrogates here also bear refuting. If we can't stand up to Bart or Howard, how will be ever deal with Addington or Yoo?
 

It the Administration's positions are worth refuting (and given the power they hold, the Administration's arguments, no matter how specious, must be taken seriously and refuted), then I believe the arguments of their surrogates here also bear refuting. If we can't stand up to Bart or Howard, how will be ever deal with Addington or Yoo?

There are lots of reasons to refuse to respond to someone. When I hear my opposing counsel make a losing argument, the smartest thing I can do is shut my mouth and let him/her keep talking. Most people are capable of seeing the flaw(s) in really bad arguments even without my usually invaluable assistance.

This isn't fear of confronting anyone, it's the commonsense attitude that life is too short to correct every flaw in the world. Our own positive arguments can deal with most issues which deserve consideration.

JMHO.
 

It the Administration's positions are worth refuting (and given the power they hold, the Administration's arguments, no matter how specious, must be taken seriously and refuted), then I believe the arguments of their surrogates here also bear refuting.

Very often, the apparent purpose of the surrogates -- self-appointed or otherwise -- is simply to change the subject and blow smoke. They make "arguments" that the administration will not dare make in court. We have seen that pattern repeated by several of the usual suspects on various topics.

The subject of Marty's original post, by contrast, was based on a remarkable declaration in court by the government describing detainee treatment based on deliberate psychological isolation and withholding of the right to counsel.

But much of the comment thread became a distracting chase down a rathole after specious, off-the-wall legal theories about military detention per se, and misstatements of legal fact about the history of Padilla's case. The "surrogates" accomplished the administration's objective. They did not need to win any "argument" at all.
 

Enlightened Layperson said...

People like Howard or Bart are best seen as surrogate lawyers, arguing the case for the Administration.

:::sigh:::

To which part of the Administration are you referring? The VP's office, Justice and DoD often have differing positions on many of the issues raised here.

In any case, I give my personal position on these issues and, as I have repeatedly posted and may (heaven forfend) get to argue after November 2008, that position will not change under a Dem President Clinton, et al.

However, I wonder if many of the breathless arguments made here about the pending demise of the Republic and the Constitution in favor of a fascist police state are not partisan attacks which will wither and disappear if a Dem is elected CiC and becomes the putative "Fuhrer" using the same tools and policies.

Time will tell.
 

I'm not a lawyer, and I have trouble following all the legal arguments here, but a few simple questions keep nagging at me: Does presumption of innocence not apply to Jose Padilla for some reason? Is he not innocent until proven guilty? And if he is technically innocent at this point, how does the government justify their treatment of him to date? Or does "enemy combantant" status wipe out presumption of innocence? If so, and if that status can be applied to any American citizen, is not presumption of innocence now gone, and if so, what kind of country have we become?
 

Brad:
The basic principle of war is that the enemy soldier is not a criminal simply for enlisting and fighting on behalf of another army. In WWII, the German soldier was neither guilty nor innocent, but when captured he was held as an enemy combatant in a POW camp.
Asserting someone is an enemy combatant is not a charge, it is a statement about fact.

If an enemy soldier is captured wearing the uniform and carrying the ID card required by international law, and if he gives name, rank, and serial number then the facts are not plausibly in dispute. In WWII 435,000 Axis prisoners where brought to the US and held in POW camps without being charged, appearing in court, or challenging his capture.

The problem is that there is no established process for dealing with enemy combatants who are captured out of uniform. There is no civilian judicial process to determine if they are enemy soldiers. There is no specific mililtary process.

In Padilla's case, the US has his enlistment papers with his name, birthdate, signature, and fingerprints. Then they have not just his original statement, but hundreds of hours of interrogation where he presumably detailed his training, service, units, commanders, and so on. There may also be data on the computers captured with KSM and Binalshib.

Under the Hamdi decision, a US citizen alleged to be an enemy combatant has the right to challenge that claim. Padilla's case was continuously in court, but not once in all that Habeas litigation did his legal team claim that he was not actually an enemy combatant. Rather, the claim was that the government could not hold him in custody based on any assertion (even if true) that he was an enemy combatant.

A criminal has the right to remain silent and the government has to prove a case beyond a reasonable doubt. Normally, a captured soldier simply has his name, rank, and serial number entered and transmitted to the ICRC. If someone held as an enemy combatant wants to challege this designation, he does not have the right to remain silent and demand that the government prove its case. It is not a criminal charge. His challege is essentially a civil proceeding.

Which is why Padilla's team never did and never would challenge the claim. First, there is overwhelming evidence, mostly from Padilla himself, that he was an enemy soldier captured on a military mission. More than that, however, Padilla committed two separate capital offenses. He could be charged with Treason, but that requires confession in open court, or he could be Court Martialed as a spy. His un-Marandized testimony cannot be used against him on either charge, but if he tried to contest the claim that he was an enemy combatant in court, then he could be deposed or cross-examined on that question. Given the overwhelming evidence against him, and his relatively limited intelligence, he could easily say something in court under oath in his civil proceeding that would then be admissible against him in subsequent civilian or military capital criminal proceedings. Therefore, his legal team argued law and did not contest facts.

However, if the government has al Qaeda documents showing that Padilla enlisted, and they have his statement that he was an enemy combatant, and he never contested the issue legally, then what more do you expect the government to do? Padilla can go to court to claim that he is not an enemy combatant, but the government cannot drag him into court to try and get some judge to confirm their decision. Absent an actual challenge, this is not a justiciable issue.
 

Howard,

Thanks for your reply. Could you please explain why the crimes Jose Padilla is charged with can't be handled as standard crimial offences? Is conspiracy to commit mass destruction with a dirty bomb not covered in our legal codes? Why wasn't he charged with that and tried by a jury of his peers?
 

Padilla could be charged with the civilian crime of Treason, with "crossing lines out of uniform" (the formal military charge for being a spy), and for the material support for a terrorist organization stuff the jury is now deliberating in Miami. The "dirty bomb" thing, however, was never a charge and probably wasn't a crime. It was a cover story.

In Afghanistan, Padilla set himself up as the expert on America. He had one big idea. "I grew up in America, I know Americans, and if you really want to make an impression on them don't just set off a bomb. Put something radioactive in it, because Americans are terrified of radiation. That will really get their attention." He made this pitch to anyone who would listen. Supposedly, in their first meeting KSM had been told to set aside a half hour to let Padilla make the "dirty bomb" pitch before telling him that, well that is a fine idea but for now we want you to continue to plan for the "apartments operation" and we will consider your dirty bomb some other time.

In al Qaeda, Padilla was known as "the American", "the Puerto Rican", and "the dirty bomber". Anybody who knew him in Afghanistan or Pakistan knew of him as "the dirty bomber" because you couldn't avoid him giving you the pitch.

When he was transferred to military custody, the AG had to say something that was true but which did not disclose that Padilla was spilling his guts and telling them everything he remembered about KSM and his cadre. So they adopted as a cover story the one fact about Padilla that could have come from almost anyone in al Qaeda who knew him or even knew about him. He was the guy with the dirty bomb pitch. This left the impression that Padilla wasn't talking, we didn't know about the apartments operation, and Padilla had been fingered by someone else.

A reasonable candidate for the "someone else" is Abu Zubaydah who in a moment of weakness taunted his CIA interrogators with some statement like, "You Americans think you are all so smart. Well we had an American in al Qaeda and the only thing that moron could do day after day is talk about his crazy idea for building a dirty bomb." He said this after Padilla had been identified by the US (in Dec 2001) but before he was captured. He did not mention Padilla by name, but Padilla was the only American in al Qaeda so it was easy to fit the pieces together. It is speculation, but one of the things that got the FBI to make Padilla crack. They could have played the Zubaydah recording, then said something like, "You have been abandoned by your al Qaeda friends. They are laughing at you. Abu Zubaydah, your old commander, told us you were the crazy American who was always shooting off his mouth about a dirty bomb. Why protect these guys when they don't care about you. Help us help you. Time is running out to save you from the needle." Padilla was in a gang in Chicago and could easily believe that, just like his old gangs, someone in al Qaeda could decide to rat him out. You weave a few facts with a lot of lies and someone like Padilla will crack wide open.

That said, shooting off your mouth, even about weapons of mass distruction, is not a criminal offense. He never had a mission to use a dirty bomb. He never tried to build one. He may have "studied" dirty bombs, but not to any more detail than "to build a dirty bomb you put something radioactive on top of a regular bomb."

Thus the dirty bomb claim is a statement of fact about Padilla but not a meaningful criminal charge.
 

Howard,

Again, thanks for your thoughtful reply.

In your first post, you call Padilla "an enemy soldier captured on a military mission," as if he were someone of such great consequence that the government had not choice but to treat as they have these last 4+ years.

In your latest post you describe him as someone even his Qaeda compatriots thought of as a "moron" who "may have 'studied' dirty bombs, but not to any more detail than 'to build a dirty bomb you put something radioactive on top of a regular bomb.'"

I don't think you can have it both ways.

You also say that the dirty bomb plot was a "cover story." But that's certainly not the way it was presented to the public. We were told Jose Padilla had come to this country to detonate a dirty bomb and that only the Bush administration's watchful eye had averted catastrophe. But you say that even before he was captured, we knew that Al Qaeda thought this was a "crazy idea." Are you okay with the way the Bush administration stoked fear with the dirty bomb "cover story?" What you call a "cover story" I would call a "lie" or at least a egregious distortion of truth for politcal purposes. Are you okay with that?

And if we knew even Al Qaeda didn't take Padilla seriously, why the three years of torture and isolation? Is this the "24" scenario where we must torture and "break" anyone who might have the slightest possible information? Are you okay with that as well?

None of the above sounds like the America I grew up believing in. My father fought in World War II, when foreign fighters prayed to be captured by the Americans because they knew we would treat them fairly and would not torture them.

Perhaps we just believe in different Americas?
 

Padilla is not very smart and rather weak willed. He was sent to the US by KSM on a mission of sabotage to blow up apartments. He had documents, communications protocols, and what was left of $15,000 of al Qaeda operations funds after buying the airplane tickets.

Being a moron is not inconsistent with being a soldier on a mission. We have no IQ ratings on the 19 hijackers on 9/11, but some of them were simply muscle on the plane to run interference and then die. You can be dangerous and still be dumb.

Padilla was useful to us only in so far as he could identify KSM's people, and then only until around the March 1, 2003 date when KSM was captured. Up to that point his isolation and interrogation was defensible. After that he should have been moved to a more normal, less stressing form of detention.

It was important that KSM did not know Padilla was talking. During WWII we tried everything to convince the Germans the landing would be somewhere other than Normandy. If you want to call Ashcroft's Moscow press conference a lie, I will not object. He can go on the list after Churchill, Eisenhower, FDR, and the rest of them. If I have captured someone who has confessed to being a murderer, kidnapper, child molester, bank robber, and drug dealer, but to preserve the integrity of an investigation and save lives I only disclose that he is being held on a charge of DUI, then I am lying. You don't have a right to know, if tell you and everyone else will cost lives. If you don't like that, we will simply have to disagree.

Ignore the hyperbole on both sides. He wasn't a mastermind or major threat. Neither is he a victim. He is an enemy, spy, traitor, and criminal all proven by overwhelming evidence that is not admissible because, to maximize his intelligence value, the US made a calculated decision not to Marandize him. His information was more important than his prosecution. And essentially, that is all you are complaining about. Why didn't we try him sooner? Because we didn't care much about his conviction, but his information was critical.

If he was a criminal, this would not have been allowed. But he was an enemy soldier and spy, and this is a war. His treatment was legal and proper for a captured enemy spy in possession of important intelligence. His IQ, his citizenship, his dirty bomb idea, his instability, none of these things matter legally or change the rules.
 

Hello Everybody,

Came across a transcript of an interview that is related to this post and the one immediately before it. It is an interview with a woman who examined Padilla's mental state.

Sadly, I imagine some of the comment regulars will be quite pleased. We should remember that there is no good evidence that what was done to Padilla did any good for anyone. Although some of us may choose to have naive trust in whatever Padilla's captors say, the rest of us are surely disturbed by the pointless violence done to this guy.

Best,
 

The jury took only a day and a half to find Padilla was al Qaeda and convict him.
 

If the United States had enough evidence to convict on all counts beyond a reasonable doubt in less than 2 days of deliberations, they had far more evidence than necessary to hold Padilla as an enemy combatant for the duration of the war.
 

If the United States had enough evidence to convict on all counts beyond a reasonable doubt in less than 2 days of deliberations, they had far more evidence than necessary to hold Padilla as an enemy combatant for the duration of the war.

# posted by Bart DePalma : 3:12 PM



How many days does the Constitution say the jury can deliberate before a person's rights have to be acknowledged?
 

Of course America must use its laws and criminal system (and its armed forces, when appropriate) to defend itself from those who would do us harm. I'm happy Jose Padilla had his day in court, and that he was convicted and will be punished. Justice was served and I'm proud of that.

That justice, however, does NOT justify the torture, sensory deprivation, psychological torment, etc. etc. that he underwent at the hands of my government. We're a better country than that, or at least we used to be.
 

Good point, Bart. They continue to crow about Libby's conviction, however, and ignore Padilla's in that regard.
 

Folks,

Here is another interview that is relevant to the Padilla case. This time it is with his attorney.

The facts of this case are important. To the extent that Padilla's attorney has accurately reported on the trial, the conviction is highly dubious. The jury was played videos of Bin Laden unrelated to Padilla. And the famous "data-form" is not all the government has called. It has inconsistent hand writing, inconsistent date conventions, and (not discussed in the interview) Padilla may have handled the document since it was acquired by the government & fingerprints were not taken until two years after the document was first acquired.

Some of the comment regulars instinctively believe anything their government tells them, they also believe Padilla to be guilty just on the word of officials. I think these commentators are in the best position to tell the rest of us the kind of prejudice the jury may have brought to the case.

By the way, according to the woman who assessed Padilla's mental state (see link in my last comment), Padilla is quite supportive of the government, and has expressed his desire to see the prosecution make its case effectively. This is evidence that points pretty clearly to Padilla being unfit to stand trial.

Those of us who are honest will admit that we have no idea if he is factually guilty; & those of us who don't live in a fantasy world of pure good and evil, will realize that the case brought against Padilla is extraordinarily weak, propped up mostly by PR and associated hearsay.
 

Sorry, Peter, but as you know from the Scooter Libby trial, a jury of his peers has spoken.
 

Unless, of course, you want to now admit that those of us who are honest have no idea if Libby is factually guilty as well?
 

Assuming you won't admit to that, can we at least agree that Padilla's conviction proves the government properly "categorized" Mr. Padilla as an unlawful enemy combatant? THAT does not even take "beyond a resonable doubt" . . .
 

Question for defense attorneys:

What would you do if, in a "terror" case, your jury showed up in red, white, and blue on the 4th of July? Would you feel that this sign of patriotism was inappropriate for a consideration of facts in such an important case?

Would this be like jurors showing up with a MADD t shirt during a DUI trial? Or wearing rainbow pins during a hate crime case against for attacking a homosexual?

I just found this at http://www.talkleft.com/story/2007/7/3/225654/0947

Now what would the prosecution have said if they all wore chadors one day?
 

I don't know about you, Peter (or now Fraud Guy with his Blackwell list), but even 21 calls by or about Padilla's terrorism is more than enough for me -- did the government "fake" those calls as well? Do you also think this has been one of the most closely watched trials since the Sept. 11 attacks? Most people I know reacted to the news of his conviction by not knowing who he was or that he was even on trial.
 

"can we at least agree that Padilla's conviction proves the government properly 'categorized' Mr. Padilla as an unlawful enemy combatant?" No, these are entirely different things. Padilla was convicted for things he did before July 24,2000, after which he became part of the al Qaeda armed forces and an enemy combatant. Padilla's conviction is for a prior criminal act that occurred when he was still a civilian and a US citizen.
 

Howard:

"can we at least agree that Padilla's conviction proves the government properly 'categorized' Mr. Padilla as an unlawful enemy combatant?" No, these are entirely different things....

I agree. One might say that an "unlawful" "enemy combatant" is an enemy combatant that commits a crime. But that is not some special and unique group.

... Padilla was convicted for things he did before July 24,2000, after which he became part of the al Qaeda armed forces and an enemy combatant. Padilla's conviction is for a prior criminal act that occurred when he was still a civilian and a US citizen.

Do you know where to find the specifics of the indictment(s)? What evidence did they have (or present) that Padilla "conspir[ed] to murder, kidnap and maim people in a foreign country"? What were the laws they were charged with breaking? What specific acts did they conspire to commit (and when)? Does the trial record or reporting give any of this information?

Anyone else that knows this, feel free to chime in. Thanks.

Cheers,
 

What would you do if, in a "terror" case, your jury showed up in red, white, and blue on the 4th of July? Would you feel that this sign of patriotism was inappropriate for a consideration of facts in such an important case?

I'd use it in my closing as an excuse to give a civics lesson stressing the importance of the right to a jury trial and the presumption of innocence.
 

Howard:

Were the 21 calls by or about Padilla related to terrorist acts "faked" by the government "fake"?
 

Let's try to stay closer to the topic here. I provided a couple of links about which people can evaluate for themselves . . . it might help for figuring out what happened with Padilla.

I would like to say however, that Charles is right, as he implies above, that we should be skeptical of the Libby verdict. And for some of the same reasons we should be skeptical here. If Charles decides to apply to same scrutiny to the Padilla case as he does to the Libby case, then he will find that the government's case is very weak.

But let's not lose track of the topic. It might be fun for us computer warriors to sit around trying to decide who is the true hypocrite, but it makes more sense (to me) to look at what was done to Padilla and ask about the kind of example it sets for the future.

Unless you accept outright the word of the government, we have no idea if anything was gained from what was done to Padilla. On "non-utilitarian grounds" I am appalled by the torture he was subjected to, but I am also amazed that there is no good evidence that anything came of it, and that the case brought against him for alleged crimes committed overseas was exceedingly weak.

Off-handedly, how does this case affect efforts to bring people to justice in the US who have committed crimes overseas. If this verdict is held up, will it have a positive impact on the chances of bringing other (I should probably say "real" not "other") terrorists who are living in the States to justice?
 

Peter:

Interesting about Libby -- I didn't think I'd actually get that concession. I don't recall posting in this thread my opinion on Libby, though, one way or another. Back on topic: yes, I assume that those 21 calls by, or about Padilla, were not faked by the government -- neither do I believe Padilla's own enlistement papers were faked -- under that assumption, the case against him was not exceedingly weak.
 

If people don't mind a little detour from the treatment of Padilla prior to the maladministration's forced transfer of Padilla into the criminal justice system, I pose this question: Did Padilla get a fair trial? Do people think the evidence was sufficient to support a conviction?

I offer this vignette from the trial.

On a more general note, FireDogLake has a compendium of posts covering various aspects of the trial.

I personally am mystified. What was the crime?!?!? Supporting Chechen rebels? Kind fo like the things the United States gummint did in Afghanistan in the '80s?

I'm not saying that Padilla is the next Mother Teresa, nor that he acted in a legal, much less prudent manner, in the wake of 9/11. But if we're going to try him and convict him, I'd like it to be a bona fide conviction of an actual crime, not some surrogate charges in lieu of other more substantial charges which the gummint managed to screw up by side-stepping the law themselves.

Cheers,
 

Arne,

Assuming that those were fair representations of typical facts presented at trial, then wtf? I sat on a jury with actual physical evidence in a possession case that was much stronger than what was shown, and we not only acquitted, but several of the jurors asked the prosecutor why they tried the case when the evidence was so weak. The reply was that the threshold for an indictment is very low. The only reason there was a trial was the insistance of the defendant--both the prosecutor and public defender had recommended a plea deal.

Maybe the defense should have worried when the jury showed their colors: http://www.talkleft.com/story/2007/7/3/225654/0947 because I don't see a slam dunk in the presented evidence that would allow a quick guilty verdict.
 

Padilla may want to add counsel incompetence to the grounds of his appeal.

NPR's Democracy Now interviewed Padilla's attorney Andrew Patel (sp?) about the trial and verdict yesterday and Patel was rambling to the point of near incoherence. He may very well have been drunk. When the DN host asked how Padilla took the verdict, Patel was about to say that Padilla was disappointed and then, apparently remembering that Padilla is not supposed to be competent, lamely told the host to ask Padilla's doctor.
 

This comment has been removed by the author.
 

Regarding the comment above, from Mr. Bart DePalma. What DePalma wrote immediately above is wrong, as you can read from the transcript. Padilla's lawyer did not suggest asking Padilla's doctor about how he felt about the verdict, contrary to what DePalma claims. The follow is from the interview:

"AMY GOODMAN: What is Jose Padilla's reaction?

ANDREW PATEL: I would vastly prefer that circumstances had permitted you to ask him of that question. And I think I’ll save it for -- the answer for the day when he can answer that question for himself."

As for DePalma's other weird allegations that Patel was drunk and incoherent, I think it would be easiest for those of you who are interested to read the interview itself. The lawyer was neither drunk nor incoherent.

One must be impressed by DePalma's deep commitment to believing whatever the government tells him, he's cute in his naivety---vainly struggling to justify he beloved leaders.

Best,
 

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