I'm not ashamed. Do you think that Padilla was a dangerous man?
 

As for being "[u]nable to demonstrate before a neutral arbiter that its claims about Padilla were true, the government instead transferred him to the criminal process, where he is now on trial for a different set of charges than those offered by the government as the justification for holding him", same kind of thing happened to Scooter Libby not getting charged for any underlying crime -- that was O.K. for your political purpose though -- perhaps Padilla and his cohorts kicked sand in the umpire's eye too?
 

The strength of our country is in our freedoms, not in our government. When the government seeks to ignore, undermine, and argue against the very freedoms it was created to protect, it ceases to be of, by, and for the people and turns into a self-aggrandizing entity.

The hypocrisy in the government's actions were clear, especially as laid out here. Those who take solace in such hypocrisy are welcome to revel in their shamelessness. The rest of us have a lot of damage to undo to restore our country.
 

That's right, who could possibly be considered "dangerous" just because he wanted to use a "dirty bomb" on your American city and filled out a "mujahedeen data form" in 2000 to attend an al-Qaida training camp in Afghanistan -- that form, found after 9/11 by the CIA along with dozens of others, bears Padilla's fingerprints -- now that he's in the federal criminal system, however, we know there's at least enough evidence to overcome a defense motion to acquit:

http://news.yahoo.com/s/ap/20070717/ap_on_re_us/padilla_terror_charges;_ylt=AsxtPW3jZbKBpZ4MVM9lXCzMWM0F

The Constitution is not a suicide pact.
 

What will be interesting will be the Administration reaction IF Padilla is acquitted . . .
 

Hi ya'll, I'm your president and decider-in-chief.

I have decided that you deserve a one-way helicopter ride over the Potomac. Enjoy your trip!

Uh, you over there...just what did you say your faith was???
 

Keep in mind that most Americans don't even know Padilla's name, and even if they do, they don't care about ONE alleged terrorist not getting all of his Constitutional rights immediately -- more people watch 24 on Fox than care about this case -- I hope someone in the White House has a statement ready for either a conviction or acquital with this in mind: "Padilla was properly classified as an enemy combatant, but he gets access to the federal courts because he happened to be born here," said Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University in San Antonio. "To the common understanding of the average American, he is a traitor to his country regardless of what he is actually charged with."
 

Very funny, pajarito. The real kicker, of course, is that Congress and the Courts have gone along with Bush on this one -- better safe than sorry -- you are aware that Bush is not the only one to blame, right? The federal appeal court ruled that Padilla's detention as an enemy combatant without criminal charge was legal -- the federal trial judge refused to dismiss the terrorism-support charges against Padilla, rejecting defense claims that his 3 1/2 years in custody as an enemy combatant violated his 6th Amendment right to a speedy trial -- in fact, U.S. District Judge Marcia Cooke agreed with prosecutors that Padilla's years in isolation at a Navy brig did not count because he had not yet been charged.

The criminal charges only came about when Padilla was added to an existing Miami terrorism-support indictment in November 2005. Only then did the clock start for the purposes of the Sixth Amendment -- there's no doubt the trial happened quickly enough after that, regardless of when he was originally detained -- hopefully, the FBI has a contingency plan in place in the event Padilla is acquitted.
 

Hope you had a restful and Happy Birthday yesterday, Jack.
 

Thank you professor, for calling this conduct by its true name.

The putative "War On Terror" is more than 'merely a law enforcement action'; it is a struggle to determine our own right to self rule under the COnstitution.

Those who argue otherwise are deceivers.
 

You're not claiming that Padilla losing the right to vote as a convicted felon means all of us non-convicted citizens lose our right? Also, can you answer my original question: Do you think that Padilla was a dangerous man?
 

Charles is not exercising free speech, he is flooding the comments with his political agenda to get attention. We call that trolling.
Anybody convicted of being a troll ought to be banned from posting comments.
Or maybe just because I said so?
 

I'm more outraged by the Padilla case than by anything else this administration has done. What they've done to him is truly un-American, in every sense.
 

Actually, my original question was prompted directly from Balkin's statement: ". . . the President thought that Padilla was a dangerous man. But authoritarian regimes always think that the people they lock up are dangerous. They always do it to keep the country safe, to save the country from its enemies."

I think mine was a reasonable, on-topic question. Whether I am exercising "freedom of speech" is not.
 

Steve:

Maybe you can answer my original question: Do you think that Padilla was a dangerous man?
 

I thought that the United States Court of Appeals for the Second Circuit, held that the President lacked the authority to order the military detentions of American citizens captured on American soil.

What part of "No person shall be ... deprived of life, liberty, or property, without due process of law ..." is unclear?
 

Was that the Hamdan case? I'm only posting about the 4th U.S. Circuit Court of Appeals in Padilla that the government could continue to hold Padilla indefinitely -- that was being appealed to the U.S. Supreme Court when DoJ finally decided to simply indict Padilla on the criminal charges -- as I said above, however, the Constitution is not a suicide pact.
 

To answer your precise question, Charles ...

No, I do not think that Jose Padilla was dangerous. To my knowledge, there is not one scintilla of evidence that he possessed the means to carry out the acts he was initially alleged to have planned.
 

Rumsfeld v. Padilla
 

Thomas Jefferson, in 1803, arranged the purchase of the Lousiana territory in conflict with Jefferson's personal belief that the Constitution did not bestow upon the federal government the right to acquire or possess foreign territory. Due to political considerations, however, Jefferson disregarded his constitutional doubts, signed the proposed treaty, and sent it to the Senate for ratification.

In justifying his actions, he later wrote: "[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
 

Thank you, Burnspbesq, for at least answering the question. I think the circumstantial evidence (including his return from an al-Qaida terrorist training camp in Afghanistan with $11,000 in cash) of said "means" was enough to connect the dots. You, not so much.
 

That was filed in the wrong court, Nal -- read your own cite next time -- the Supreme Court has not yet ruled on Padilla's status as an "enemy combatant" and that is moot now that he's been charged and tried. We should get a jury verdict any day now.
 

At the risk of feeding a troll, I will quote a founding father:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

Benjamin Franklin.
 

Back to "the Constitution is not a suicide pact", that phrase is most often attributed to Abraham Lincoln, as a response to charges that he was violating the United States Constitution by suspending habeas corpus during the American Civil War as well. Not a big surprise I consider Bush as fighting a war that in many ways exceeds our own Civil War.

Although the phrase echoes statements made by Lincoln at the time, and although the sentiment has been enunciated several other times in American history, the precise phrase "suicide pact" was first used (ironically) by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court.

In 2006, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit and professor at the University of Chicago Law School, wrote a book called "Not a Suicide Pact: The Constitution in a Time of National Emergency." In the book, Posner argues that facing terrorism and the threat of WMDs, the scope of constitutional rights must be adjusted in a pragmatic but rational manner. Using cost-benefit analysis to balance the harm new security measures inflict on personal liberty against the increased security those measures provide, Posner comes down, in most but not quite all respects, on the side of increased government power. Posner argues that terrorist activity is sui generis — it is neither "war" nor "crime" — and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity.

http://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact
 

Paul:

Better hurry up then, because I've quoted Thomas Jefferson, Abe Lincoln, Justice Robert H. Jackson, and Judge Richard Posner so far. I could throw in LIBERAL Harvard Law professor Dershowitz at no additional charge . . .
 

Burnspbesq:

Can we at least agree on the following: "The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself . . ."?
 

charles:

"The federal appeal court ruled that Padilla's detention as an enemy combatant without criminal charge was legal ..."

Perhaps you could provide a link.
 

Sure, I will look for that as soon as I can. Here's the Alan Dershowitz link: http://www.blogger.com/comment.g?blogID=15518184&postID=113216220147633644
 

How about I quote a play/movie instead?

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

 

Nal:

http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/padilla/padhnft90905opn4th.pdf
 

And one more thing, Charles.

It is my sincere hope that you are simply a partisan for a particular political party.

If you truly believe that, say, President Hillary R. Clinton would be justified in imprisoning, say, a member of a Montana Militia and treating them in exactly the manner Padilla was, then you, sir, are a true blue Authoritarian.
 

Try again, Paul -- if your attention span will cover a whole movie, I'd suggest Mel Gibson in The Patriot -- we were talking about AMERICAN Founding Fathers, right?
 

Padilla was an American citizen who travelled to Afghanistan and enlisted in the armed forces of al Qaeda. After basic training in the al Fraouq camp he pulled three months of absolutely military standard guard duty, standing with his AK 47 guarding a Taliban facility near Kabul. He was then recruited by Mohammed Atef for a special operations unit planning an attack on the US. He trained for a year for "the apartments operation", a follow up to "the planes operation" on 9/11. The plan was to blow up as many as a dozen apartment buildings in a city Padilla chose using natural gas as the explosive. If done right, engineers believed you could kill everyone in the building while they slept. Transferred to the command of KSM who conceived, planned, and commanded 9/11, Padilla was given papers, cell phones, and $15,000 in al Qaeda operating funds to start the attack. He was captured after stepping off a plane in Chicago before he legally entered the country by Federal agents who had captured al Qaeda documents identifying him as an enemy soldier.

Apparently he confessed everything during interrogation by the FBI in the Federal lockup in Manhatten. Although he was the lead player in the next attack on the US by the people responsible for 9/11, he was individually of much less importance than his commander KSM. He was transferred to military custody for interrogation to extract as much intelligence about the KSM cadre as possible.

Although he was not brought before a judge prior to his detention, this is not required (ex parte Quirin) for persons, even US citizens, who are enemy spies captured trying to enter the country. Although the US government never had to prove the facts listed above in any court, Padilla's case was litigated continously starting two days after his transfer to the military. In 3 1/2 years of litigation, his legal team never once disputed any of the facts presented by the government, but rather argued points of law. Although never presented to a court, there are hundreds of hours of recorded interrogation in which Padilla details everything he did, every meeting he attended, the whole story.

Interestingly, Padilla's military detention has been upheld by two separate panels of the Fourth Circuit (in his own case, which was the final legal decision on the matter, and then later in the al Marri case where a second panel concurred that Padilla's detention was legally proper).

Even the Fourth Geneva Convention notes that you sometimes have to keep the details of a captured spy secret for security purposes. However, after his first year of detention there was no longer an intelligence reason to hide his status. At that point the government should either have transferred him to civilian courts or brought him before a military Court Martial, except that his case was in continous litigation which had to be resolved first.

There was no excuse to keep Padillia in isolation after the government stopped questioning him. The last two years of his military detention served no purpose and were inexcusable. Otherwise, his detention was legal and proper both by US and international law. He received no additional process, but as a captured enemy soldier attempting to enter the country on a military mission as a spy, he was not entitled to any.

Padilla had critical intelligence about the group responsible for 9/11. The military used agressive, but what it believed to be lawful means to maximize the value of this information. As a spy, he was not subject to the protection of the Third Geneva Convention on POWs. Since he was not being punished for a criminal conviction, there is no "cruel and unusual" consititutional challenge. Obviously his treatment had to meet some standards, but he was not thrown into a "tiger cage" like the North Vietnamese did with our prisoners. Also note that al Marri received exactly the same treatment in the cell "next door" but has shown no evidence of mental problems.

Padilla went to jail in Florida for shooting a gun at someone in a "road rage" incident. He was recruited because he was the only American among the 18,000 al Qaeda soldiers. He actually believed at first that al Qaeda was going to send him to Chechnya, although any rational person would know that a Hispanic American who can speak English and a little broken Arabic, with no professional military background, and whose experience in combat consisted of shooting at a fellow motorist near I95 did not stand a snowball's chance in hell of getting anywhere near Chechnya. Padilla was a few cans short of a sixpack long before they threw him in the brig. While his treatment did not improve his stability, when someone has critical intelligence do we avoid extracting it simply because he is a little unblanced to begin with?
 

P.S. if a member of a Montana Militia were caught with HALF the evidence we have against Padilla, I would call for Hillary's impeachment if she didn't treat said traitor the same as Bush did Padilla. Let me guess, you think Benedict Arnold was a "good guy" too?
 

Charles:

Never mind. I found it.
 

Is it this case, Nal:

http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/padilla/padhnft90905opn4th.pdf
 

Charles misses the point in Padilla:

One man was accuser, judge, jury and executioner. Padilla was tortured into complete mental collapse.

That is against all this country stood for.

The torture preceded any 'trial', hmmmmm--now where in recent history have we heard that happen?

What did we call those regimes?

Not bad, 6+ years to dismantle 200+ years of freedom, and we made a profit to boot!!
 

"The exceedingly important question before us is whether the
President of the United States possesses the authority to detain
militarily a citizen of this country who is closely associated
with al Qaeda, an entity with which the United States is at war;
who took up arms on behalf of that enemy and against our country
in a foreign combat zone of that war; and who thereafter traveled
to the United States for the avowed purpose of further
prosecuting that war on American soil, against American citizens
and targets.

We conclude that the President does possess such authority
pursuant to the Authorization for Use of Military Force Joint
Resolution enacted by Congress in the wake of the attacks on the
United States of September 11, 2001 . . ."
 

Sorry, but that formatting didn't work. Gotta go now. See you guys later.
 

I think you've hit on the key to the Republican destruction of the American republic - marketing. You've put the significance of the Bush groups actions towards Jose Padilla in its proper and stark prospective. Padilla, an American, was jailed and tortured in a manner that has been shown to be guaranteed to bring on insanity. Those actions are fundamentally against everything that the American republic stands for - represents. Though the words "under God" in the pledge of allegiance, which American school children are effectively forced to recite every school day, have been made into a Republican call to arms since the 1950s, other words like "liberty and justice for all" are ignored and even scorned. Sound bite phrases like "the constitution isn't a suicide pact" are spouted loudly and proudly, making voting Republican into a national suicide pact.

Whenever I see or read in the news that Americans are losing some of their "civil liberties" I recognize how Republicans are controlling the public dialog leading to the destruction of the American republic. These aren't "civil liberties." These are the most basic and fundamental rights and freedoms that are and should be cherished by every American. The "American Civil Liberties Union" is incredibly badly named. It should be called "Defenders of America" or "Defenders of America's Freedom." How an American president that goes throughout the world kidnapping people of all nations off the streets and flying them to torture chambers built and maintained by his order can claim to be spreading democracy and freedom is absurd, disgusting and dangerous to any real concept of freedom and democracy.

The Republicans use rhetoric that Vince McMahon, controller of the "WWE" would be proud of. Watching a Republican presidential debate is a lot like watching one of the WWE ("E" for entertainment because McMahon didn't want to allow wrestling to be considered a competition open to government commission regulation like medical examinations) debates with steroid infused behemoths shouting loudly in gravelly voices how tough they are. That's what Republicans have brought to America. Orwell's "1984" is far too intellectual for these people. Even Jesse "The Body" Ventura, a "professional wrestling entertainer" was far more plain spoken and honest than these manipulators of dialog.

But this repeated rhetoric, boldly shouted in the face of the crimes committed in its name, is allowed by America's press and media to stand without challenge. We're told how we've ended torture and rape rooms while we've actually built many of the same throughout the world. Donald Rumsfeld, one of the original architects of America's torture regimen bemoaned the disclosure of Abu Ghraib torture methods. Not its actual practice but its disclosure. We see that almost every day in America where the disclosure of government crimes is considered the dangerous crime, not the criminal actions of our leaders and their toadies.

I have to disagree with you on this -

..................................................
To be sure, the President thought that Padilla was a dangerous man. But authoritarian regimes always think that the people they lock up are dangerous. They always do it to keep the country safe, to save the country from its enemies. The question is at what cost do they assume such power without accountability.
..................................................

Without a doubt there's nothing "sure" about that quote. "To be sure" is a suck up. They saw a chance to make a big public splash about a "dangerous" American among us, ready to kill thousands and millions of us if he could. I don't for a second think that it was by chance that the would be mass murdering perp wasn't blond haired and blue eyed. What's "to be sure" is that it was a Republican excuse to chip away at the fundamentals of the republic that is America. It was the blaring "Red Alert!!" without an actual color code level. Your "to be sure" reminds me of Dick Cheney's use of phrases like "no doubt" and "in fact" which he casually sprinkles in with his bold lies. There's no longer any reason "to be sure" that these people are or have acted in any way in interests that can somehow be related to defending America. They were building their Republican empire and that required destroying the foundations of the American republic. I'm surprised John Ashcroft didn't sing "Where Eagles Soar" after announcing the capture of Padilla, not ironically from Moscow, a fitting place for a Republican announcement initiating the unAmerican jailing and torturing of Americans without charge and due process.

It isn't "civil liberties" that we're losing. It's America.
 

I strongly recommend that Jack, Marty, and the other Balkinization bloggers start disemvoweling the trolls. That would go a very long way toward making comments here worth plowiing through.

(Charles's first comment, for instance, is distilled to its essence: "'m nt shmd. D y thnk tht Pdll ws dngrs mn?"
 

It seems that in Hamdi v. Rumsfeld "... eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review."
 

NAL,

Quit confusing him with the truth. He can't handle the truth. Only the TRUTH!(tm), which is spraypainted over every post he vandalizes.

Let spewing trolls lie. That's all they're good for.
 

Charles asks:

Can we at least agree on the following: "The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself . . ."?

No. Because you've made it quite obvious, over an extended period of time, where your are going with that line of argument. And with all due respect, I'm not going there.

Now, back under the bridge with you!
 

The comments demonstrate that the true danger of an authoritarian regime arises not from the regime itself, but from the people whose mentality leads them to accept it.

For my part, I would have taken it as a given that our American system relies upon the concept of due process. I would have taken it as a given that the concept of guilt is not established merely by the executive's say-so. I would have taken it as a given that a fact is not presumed true merely because the executive calls a press conference and declares it to be true.

It scares me that we have people willing to dispense with all this, and declare someone a traitor based on nothing more than unproven allegations by the government. Ultimately, our strength as a democracy depends on a majority of the public resisting the temptation to think this way.
 

In Padilla v Hanft the UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT reversed the decision by the UNITED STATES DISTRICT COURT. But the main opinion of the Fourth deals with the detention of Padilla by the President. The District Court also ruled on the writ of habeas corpus. The Fourth didn't seem to address this at all. This probably doesn't confuse the rest of you.
 

JB:

Isolation is not torture and is not a violation of the Bill of Rights. See the super max prisons, death rows and isolation cells in most major prisons.

It is very likely that Padilla has been kept in isolation in the civilian prison into which he was released to keep the other inmates from raping and killing this traitor.

If Padilla is convicted, he is most likely going to stay in isolation at the supermax out here in Colorado.

If you decide to betray your country and join the terrorists, you pay the price.
 

Wow! So many posts; so little time.

NAL:

Have you read that whole case yet (including the dissents – I think you may be surprised with Scalia’s dissent)? As noted, I wouldn’t want to “confuse you with the truth.” First of all, thank God that O’Connor is off the Court. Second, no one has said we are going to hold U.S. citizens “indefinitely” – just until the cessation of hostilities ; ) For instance, if Hillary gets elected, I’m sure she will grant all terrorists amnesty -- while Hamdi was a partial victory for the terrorists, note that the U.S. Supreme Court did not free Hamdi and he is still in fact being held at Gitmo. Hamdi reaffirmed that “enemy combatants” (even American citizens) can indeed be detained without trial. However, the Court returned the case to the lower courts, ruling that Hamdi should be given a greater opportunity to contest the government's determination that he is, in fact, a Taliban fighter. No problem with that from me really -- the Supreme Court clearly emphasized that in any such proceeding, the courts should accord substantial deference to the military (not as much as Thomas wanted obviously). For example, the government can establish its case that Hamdi is an “enemy combatant” by submitting hearsay / affidavits (rather than being required to produce live witnesses) and that the burden of proof should be on Hamdi to establish that he is not an “enemy combatant.” You think that was a real victory for Mr. Hamdi in particular? Let me know what else you want to discuss about that case.

burnspbesq:

At least you answered my questions -- everyone else is too scared to answer them -- thank you very much.

Steve:

You never did answer my original question: Do you think that Padilla was a dangerous man? That is directly relevant to the topic. If you won’t answer that, how about this one as to your point about traitors: was Benedict Arnold a “traitor” based on nothing more than unproven allegations by the government? You realize that the good General was never tried in an American court of law, at least, right?
 

How would I know if Padilla is dangerous? I have no firsthand knowledge. All I know is that the government has made a lot of claims about him.

But I accept that you've read stuff somewhere that, if true, would establish Padilla is dangerous. I just don't know why that's relevant. I read a lot of stuff that said those guys at Duke raped a girl.
 

Bart:

The isolation as a Supermax is not the same as is described in relation to Padilla. But I think you knew that. Much in the way SERE training and its related techniques are similar in name only when applied to a purported terrorist.

Charles:

There are plenty of equally dangerous men that do not get treated like Padilla. It's decidedly irrelevant to his treatment.
 

Mike said...

The isolation as a Supermax is not the same as is described in relation to Padilla.

The description of the military brig was very similar to a Supermax. You live in a small cell made out of steel and rock without any contact with other prisoners and precious little with the guards. When you are let out of the cell to exercise, you walk alone around a small walled area.

The same complaints which JB leveled at the military brig have been leveled at the Supermax and death rows.

Do you realize that Padilla will most likely be gutted like a fish within the first 24 hours of being released into a prison population? Traitors get about the same treatment as child molesters in prison.
 

Score:

Charles: 25 posts

Everyone else (including the Bartster): 26 posts

Please, people, take heed of Marty's request. The troll will give up after he repeats his stoopid question a couple of times and no one pays attention.

Cheers,
 

The information that Padilla may be able to provide is 1ime-sensitive and perishable. – Jacoby

After making the categorical statement, "the tragic reality is that torture sometimes works" (p. 137), Dershowitz fails to provide any example where he can unequivocally say that the information gained through torture could not have been gained by some other means. The case he cites in the most detail, one arising from the Philippines in 1995 where a plot to blow up eleven passenger jets over the Pacific Ocean was foiled, involved sufficient time for authorities to investigate the plot based on information received. Dershowitz does not elaborate on the facts of this case, which involve the torture of Hakim Abdul Marud. The fact is that Marud was arrested by the authorities following a fire that started in his apartment. The fire was started as a result of Marud mixing chemicals, which was suspicious activity in the first place. The authorities found the evidence of the bombing plot on Marud's laptop computer. Marud was tortured for 67 days. Clearly, time was not a matter of urgency, as it is in the ticking bomb scenario. -- Comment by "Jack Rabbit" at http://www.democraticunderground.com/articles/04/03/11_torture.html

Our torturers need myths to keep them employed. If they had to wait around for ticking time bombs they'd have to torture each other to keep their juices flowing. Institutions are built around myths like this one. Padilla's capture likely dated any information he had well before a year.

The "liberal" Dershowitz's case deserves parody in a not-so-mini series titled "67." Torture buffs made to watch it start to finish in a roomful of Cheetos would soon get the point.
 

howard:

As a spy, he was not subject to the protection of the Third Geneva Convention on POWs.

Since when was he a "spy"? But, regardless of this, what makes you think that he can be an "enemy combatant" and not be afforded the protections of at least CG Common Article 3?

Do you really think that the Geneva Conventions, that explicitly mention "spy", and which prescribe the means for trials for violations of the laws of war and statutory law, but which doesn't provide for exemption of "spies" from the provisions of the CG, doesn't apply (including Common Article 3)? How about the provision of the "spy" Article (GC4, Article 5) that "such persons shall nevertheless be treated with humanity" and "[t]hey shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power..."?

Do you think that the framers of the Geneva Conventions envisioned CG3 Article 5 as meaning they could torture a "spy" for any information they thought he might have, and only after they'd finished with that would the GC apply? For years?!?!?

GC CA3 prohibits:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;...

Cheers,
 

This comment has been removed by the author.
 

Bart:

The description of the military brig was very similar to a Supermax. You live in a small cell made out of steel and rock without any contact with other prisoners and precious little with the guards. When you are let out of the cell to exercise, you walk alone around a small walled area.

Padilla was allowed out of his cell for a walk? Don't supermaxes hold convicted criminals? Do prisoners, like Padilla, who are not convicted reside in supermaxes?
 

NAL said...

Padilla was allowed out of his cell for a walk?

Very likely. The Gitmo detainees get exercise.

I (and apparently the trial court) do not give much credence to the tales of LSD and other BS Padilla's attorneys have been serving up.

Don't supermaxes hold convicted criminals? Do prisoners, like Padilla, who are not convicted reside in supermaxes?

If the Feds wanted to use a Supermax as the detention facility for suspects waiting for trial, there is nothing in the Constitution which would prevent it. A prisoner is a prisoner.
 

Bart's comments in re: the treatment Padilla would likely receive in general population in a regular American prison does not undo the rightful characterization of Padilla's treatment as "cruel and unusual punishment,"(i.e., torture), prohibited by our Constitution, but in fact emphasizes that regular American prisons are institutionalized torture chambers, where prisoners convicted by the state are subjected every day to the arbitrary and barbaric "punishment" meted out by other convicts, that is to say, by other criminals.

Given the ever-growing number of prisoners being freed as their convictions are found to be either erroneous or wrongful, (i.e., as the result of the intentional suppression of evidence or other manipulation of the system in order to obtain convictions in cases where the defendant was often obviously not guilty), one cannot even take a dubious comfort--if one were barbaric enough to be so comforted--in the idea that "wrongdoers" are getting what they asked for--Constitution or no. One must face the sickening truth that innocent men and women must endure treatment that humane persons would not want imposed on even the guilty.

Bart's comments underscore the travesty and horror that is our present day "justice" system.

Charles' remarks reveal starkly the dangers that face us when the authoritarians rule.

As to Charles' supposed "gotcha" question of whether we believe Padilla to have been a dangerous man, the answer is: how can we know? We haven't had sufficient access to the evidence to appraise it objectively. We've had largely only the government's allegations, which were initially grossly exaggerated and intended to inflame our fears to the greatest degree and to short-circuit our willingness to grant Padilla a presumption of innocence, with assertions that Padilla was going to detonate a "dirty bomb" and so forth. None of those original charges have followed Padilla into court, however. This in itself reveals how feeble were the government's claims against Padilla, how unlikely it is that they ever had the merest whisper of substance.
 

Do you realize that Padilla will most likely be gutted like a fish within the first 24 hours of being released into a prison population? Traitors get about the same treatment as child molesters in prison.

I know we're not supposed to respond, but I can't stop laughing. The thing is, I don't know which is funnier:

1) Bart's unequivocal - and absolutely typical - assertion of an empirical fact with absolutely no evidence (when's the last time anyone was even convicted of treason in this country, let alone murdered in prison afterwards?); or

2) His assumption that the typical prison population consists of patriotic supporters of the U.S. government.

Truly priceless. What a kook.
 

Arne:
Padilla as a spy (ex parte Quirin) is not covered by GC III in general (is not a POW) but is covered by CA 3 which covers people not covered by the rest of the conventions. GC IV Article 5 covers spies who are enemy nationals, but Article 2 excludes from GC IV nationals of the US, its allies, and neutral nations, except for the section on providing medical treatment to wounded civilians. So Padilla is not covered by either GC III or GC IV, but is therefore covered by CA 3. I don't think you can plausibly argue that simply holding someone in isolation is in any way a violation of CA 3.
 

Howard, we're not talking about "simply holding someone in isolation." Please understand that.

We're talking about a hyper-isolation to the extent of blocking his eyes and ears lest he see another human being, together with other techniques deliberately aimed at destroying his mind. All based on the CIA's 1950s/60s-era reconstruction and improvement of Soviet methods.

If you want to defend what's been done to Padilla, you need to be accurate about what has been done, or else it will be difficult to take you seriously.
 

Howard:

I saw your post on the above thread to the effect that you're just trolling, so perhaps no response is warranted.

That being said, I am curious as to where, in an effort to stir the pot with outrageous interpretations of the Geneva Conventions, you find this:

"... Article 2 excludes from GC IV nationals of the US, its allies, and neutral nations, except for the section on providing medical treatment to wounded civilians."

It is true that GC4 Article 4 protects non-nationals. How do you square this then with the designation of Padilla as an "enemy combatant"?

If he's a U.S. national, then presumably the GC lays off under the assumption that internal matters of individual states are best left to themselves. But then Padilla must be treated under U.S. domestic law, and there can be no designations as an "enemy combatant" with the purpose of thereby denying him the full panoply of rights of a U.S. citizen on U.S. territory in U.S. custody under the U.S. Constitution. I agree that such a claim is inconsistent with the Circuit Court's opinion in Padilla v. Hanft, but this is one reason I think the gummint wimped out on letting the appeal proceed. Guess it's just Padilla's bad luck that while this was all being thrashed out and before the gummint decided to actually treat him as an accused criminal, he was denied his Constitutional rights, eh?

FWIW, the Constitution does provide a framework for treating people that "adhere" to the enemies of the state, and who give them "aid and comfort" (not to mention, we've given the full protection of the U.S. judicial system to spies and foreign agents who are nonetheless "U.S. nationals", such as Ames, Hansen, etc.). Does the classification and treatment of the likes of Padilla as an "enemy combatant" violate the U.S. Constitution under any rational interpretation of such? Where does the U.S. Constitution carve out an exception for said "enemy agents"?

Cheers,
 

Bart said:

(from NAL) Padilla was allowed out of his cell for a walk?

Very likely. The Gitmo detainees get exercise.

I (and apparently the trial court) do not give much credence to the tales of LSD and other BS Padilla's attorneys have been serving up.

Mike: I am curious as to why you believe he gets walks in light of the gov'ts professed goal of removing all hope from Padilla and all contact from the outside world.

Given what we know of the treatment received by terrorism suspects, coupled with Mayer's reports of things like sedatives applied via suppositories, why would is it unlikely that things like LSD were used?

Of course, given the efforts to utterly dehumanize him and break him mentally, it's possible that LSD was not even needed for Padilla to hallucinate...
 

Mike is correct; sensory deprivation induced hallucinations in the CIA's lab subjects. His lawyers may well have wrongly inferred that his hallucinations were due to drugs.
 

Mike said...

[Bart,] I am curious as to why you believe he gets walks in light of the gov'ts professed goal of removing all hope from Padilla and all contact from the outside world.

Because I do not believe the allegations made by Padilla's attorneys concerning his confinement any more than I believe their surrealistic trial claim that Padilla is really a humanitarian sending funding the Islamic charities in the Balkans. There is no real independent evidence of either set of allegations and they make no sense on their face.

Given what we know of the treatment received by terrorism suspects, coupled with Mayer's reports of things like sedatives applied via suppositories, why would is it unlikely that things like LSD were used?

Because LSD was tried and failed as an interrogation drug decades ago. There are an entire arsenal of drugs which actually work for interrogations and no reason to use LSD. Most likely, either Padilla or his attorneys resurrected this old chesnut from the past because they thought it would juice up the motion to dismiss.
 

Bart said:

"Because I do not believe the allegations made by Padilla's attorneys concerning his confinement..."

Except for the fact that we have administration officials stating that measures were taken to remove all hope from the subject and make him completely and totally isolated. So much so, that access to the court system would harm that effort. This isn't from Padilla's attornies--it's from the admin.

Your assertion that he gets walked is completely lacking in support and based on the admin's statements, it's much more plausible that he is not exercised in a meaningful way.

So you don't believe it was LSD, only because that doesn't work. You think it was more effective drugs that were used?
 

Arne:
First, you are right that it is not Article 2 that limits GC IV but instead I was referring to Article 4 (that's what I get for rushing):

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."

So since Padilla is a US citizen and not an Afghan, he is not protected by GC IV. However, a US citizen, like Hamdi, captured on the battlefield while a soldier in a recognized army can be protected as a POW by GC III. Nationality is only a factor in GC IV, not GC III.

GC IV leaves Padilla's fate up to US law, but that doesn't make him a civilian or a criminal. US law is interpreted by the Supreme Court, and in Quirin they confronted a case nearly identical to Padilla. Huber Haupt, an US citizen, was one of the eight German saboteurs. The Supreme Court recognized (as you seem to dance around) that Haupt committed Treason, but given the special problems of making that charge it was sufficient for the government to persue the much simpler charge of being a spy:

"It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, @ 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other."

The govenment could have tried Padilla in civilian court for Treason. They could have Court Martialed him as a spy. Instead, they held him in military custody as an enemy combatant until the Fourth Circuit gave them a clear legal victory and then transferred him to Miami to be tried on the current charges.

The government also only tied and convicted Al Capone for tax evasion, but I don't see anyone claiming that because that was the only charge they made that Capone really wasn't the murderer and criminal that history has long established. Padilla was a traitor, but he will serve time for a lesser offense.
 

The Padilla case is an excellent example of why we need a third-way approach to this civil liberties issue.

In order to counter terrorist threats to the United States, our government must resort to some curtailment of civil liberties, allowing the government to engage in certain types of surveillance/interrogation/investigation that run afoul of what we perceive as our constitutionally-guaranteed civil liberties. At the same time, we want to limit these incursions on our civil liberties as much as possible -- give the government what it needs, but not one drop more. If you accept this premise -- and I think most Americans do -- than the real question is determining how much civil liberties to give up.

I think that for some well-meaning liberals, the defense and preservation of civil liberties -- in the face of the terrorist threat -- has becomes a kind of quasi-religious thing, and for them the answer to the above question is "nothing." They become all absolutist, not wanting to give an inch, without examining or even wanting to hear any contrary argument. Protection of the Constitution and an unwillingness to even acknowledge the necessity of trading some portion of our civil liberties for the ability to combat terrorist threats, makes them kind of like religious fundamentalists. Let's call them consitutional fundamentalists.

In the real world the Bush administration -- and any US government -- faces an extremely difficult civil liberties problem. How do you characterize and classify suspected terrorists? The law and our legal traditions offer two very unsatsifactory categories: (1) criminal; and (2) soldier. Classified as a soldier, a suspected terrorist gets the benefits and protections of the Geneva convention; classified as a criminal and the suspected terrorist gets the benefit of consitutional protections, the 4th, 5th, and 6th Amendment protections.

The Bush administration tries to have things both ways -- sometimes treating terror suspects as soldiers, sometimes as criminals. And you can understand why, terrorists do not cleanly fit in either category -- and at the same time individual terrorists present a greater threat to the public welfare than either an individual soldier or individual criminal.

I think our entire national discourse on this issue would be a lot more civil and productive if the constitutional fundamentalist acknoweldged this problem -- rather than played a gotcha game with the administration -- and everyone just acknowledged that fact and then tried to work toward a system that both preserves as much civil liberty as possible while permitting the government to effectively combat the terrorists.

This probably calls for some third type of categorization that goes beyond the soldier-criminal scheme. So let's be honest with ourselves. We all want to prevent terrorist attacks while preserving civil liberaties. So how about we ditch this counterproductive debate over whether terrorists are criminals and soldiers and work toward finding a third solution. Not sure what it is, but maybe the constitutional-thinkiers currently engaged in administration criticism could turn their attention to addressing the problem. That's what we liberals are supposed to be best at.
 

In order to counter terrorist threats to the United States, our government must resort to some curtailment of civil liberties, allowing the government to engage in certain types of surveillance/interrogation/investigation that run afoul of what we perceive as our constitutionally-guaranteed civil liberties.

If you start with a false premise, the rest of your post isn't likely be very persuasive.

individual terrorists present a greater threat to the public welfare than either an individual soldier or individual criminal.

In contrast to all the other terrorists throughout history? C'mon, this is arrant nonsense masquerading as "realism". If you want to make this point, at least try to show by historical example that your claim is true. I don't think you'll find it very easy.
 

In order to counter terrorist threats to the United States, our government must resort to some curtailment of civil liberties, allowing the government to engage in certain types of surveillance/interrogation/investigation that run afoul of what we perceive as our constitutionally-guaranteed civil liberties.
--Last Liberal Hawk

The problem with this viewpoint is that it immediately assumes that the threat of terrorism is so great that we must take extraordinary steps to counter it.

The actual risk of terrorist attack to any individual is lower than that of being killed by a drunk driver, somewhere on the level of a person dying from a bee sting (IIRC). I don't plan on throwing away my civil rights so that the government can protect me from killer bees, and don't need to. We still give DUI drivers their constitutional protections, and they are literally a greater risk to life and limb than any terrorist.

Fear is not rational, risk management is, and we've had enough time to realize the risk of terrorist attack is so low that we don't need to hand over our rights to the government to protect us. In fact, the abilities that were in place before 9/11 would likely have been sufficient to prevent the attack had they been properly utilized by a divided, leaderless bureaucracy. I would say we need to improve our governance before giving more power to it.
 

Howard:

The govenment could have tried Padilla in civilian court for Treason....

Yes (provided they got a grand jury to indict). Why didn't they?

... They could have Court Martialed him as a spy....

Under ex Parte Quirin, military commissions (as authorised or permitted by Congress, such as in the Articles of War cited by ex parte Quirin) may be used to try such people. Under the subsequent UCMJ (which has pretty much supplanted the Articles of War in effect for WWII), Padilla might have been tried by court martial (the other holding of ex parte Quirin was that an Article III jury trial for persons situated as Haupt or Padilla were was not required under the Constitution, as long as our own military was subject to courts martial for similar offences).

But they didn't haul him up in front of a court martial either:

... Instead, they held him in military custody as an enemy combatant ...

With a lack of any due process to contest this detention (which actually understates what they did to him). But then we have Hamdi. FWIW, if he was an "enemy combatant", then at a minimum, he should have been treated as such. He was not. At the very least, the alleged treatment violates GC CA3.

Even if Luttig's opinion in Padilla v. Rumsfeld had been allowed to proceed to a Supreme Court determination, and they had upheld Padilla's detention as an "enemy combatant" in lieu of civilian trial, they would still have been bound (absent reversal) by their Hamdi decision that Padilla should have been afforded a meaningful chance to contest his detention as such; something that was hardly afforded him, seeing as he was kept incommunicado for years, much less given a chance to talk to a lawyer.

... until the Fourth Circuit gave them a clear legal victory...

Harldy a "clear legal victory". YMMV, but most sober legal scholars would perhaps term the maladministration's strategy -- of suddenly (after fighting Padilla's attempts to insist on a civilian trial and disputing that such an option existed) reversing course and taking him out of military detention and charging him in criminal court and then saying that Supreme Court review of the Fourth Circuit's decision was moot -- as, well, shall we say, "cut and run"?

... and then transferred him to Miami to be tried on the current charges.

You have to wonder why they did all that they did, if this is what they had in mind all along.

Well, some, perhaps the more intellectually curious, might....

Cheers,
 

the last liberal hawk:

I think that for some well-meaning liberals, the defense and preservation of civil liberties -- in the face of the terrorist threat -- has becomes a kind of quasi-religious thing,...

Well, if you think that following the Constitution and the law is "a kind of quasi-religious thing", I'lll plead guilty.

If you think that we need to re-evaluate the scope and extend of civil liberties in this time of unique and unprecedented danger, well and fine. Let's argue it, and then propose lawful changes as seem necessary and see what happens.

I'm of the personal opinion that putting the power to decide "exigent circumstances" -- as a loophole to avoid traditional, established, and settled law -- in the hands of one of the most secretive and politicised preznits we have ever had, with no means of contest or even meaningful debate of any such decisions, is not wholly a "good idea".

They [some liberals] become all absolutist, not wanting to give an inch, without examining or even wanting to hear any contrary argument.

To the contrary, I think that a fair number of us want the debate. Where we get all hot and bothered is when the executive takes such decisions into their own hands, and decides to ignore (or, more generously, "reinterpret") the laws, and insists that no public scrutiny and debate of such actions, followed by lawful changes as deemed necessary and as prescribed by the Constitution, is permissible.

Cheers,
 

the last liberal hawk:

The Bush administration tries to have things both ways -- sometimes treating terror suspects as soldiers, sometimes as criminals. And you can understand why, terrorists do not cleanly fit in either category -- and at the same time individual terrorists present a greater threat to the public welfare than either an individual soldier or individual criminal.

Perhaps the problem comes, as the Padilla case seems to exemplify, when the maladministration seeks to shuffle people back and forth between the categories so as to avoid any constraints on their actions that may be imposed by either classification. Or in constructing a new category (the "unlawful enemy combatant") that, because of its new construction, applies no laws to the person so designated. IOW, finding the cracks through which to drop any suspected troublesome people. They have a name for that when other countries do it.

Cheers,
 

Yes, they do have a name for that, Arne -- especially when "people" (PLURAL) are dropped through said cracks -- please name ONE OTHER "person" that the Padilla case seems to exemplify, because as far as we know, this is the only one and he was nonetheless convicted by a jury of his peers. As no one wanted to comment on Bart DePalma's point in this regard, I am forced to agree that Padilla's conviction alone proves that the government properly "categorized" Mr. Padilla as an unlawful enemy combatant.
 

Final Score:

Charles: 27 posts (including this one)

Everyone else: 48 posts

As you can see, I never "give up".

Cheers.
 

Professor Balkin, I commend and appreciate your opinion on the Padilla case. I say that as an attorney that knows the Bill of Rights, believes strongly in those principles, and also believes that violation of those principles is far more dangerous than any thing Padilla, or even UBL himself, could do to this country.

I also say as an attorney that you and your colleagues in the legal academy have failed this country by accepting as true the official story of 9/11, which is bald assertion, not only unsupported by any evidence but is patently absurd.

You accept that premise without question, and then complain about how 9/11 is used politically and legally.

I say again, you and your colleagues in the legal academy have failed this country.
 

Are you an attorney licensed in the United States? You are saying that plane(s) were NOT flown into the WTC?