Tuesday, November 22, 2005

Padilla Indicted


Today the U.S. government formally indicted Jose Padilla, an American citizen arrested in the United States who had been held as an enemy combatant for three years outside the reach of the criminal justice system.

Originally the Justice Department claimed that Padilla had planned to detonate a "dirty bomb" (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today's indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become "a violent jihadist" and that he had conspired to send "money, physical assets and new recruits" overseas to engage in acts of terrorism."

Since 9/11 the Bush Administration has sharply criticized others for daring to suggest that citizens accused of terrorism should be dealt with through the criminal justice system. It has insisted that 9/11 changed everything and that terrorism must be dealt with through novel methods that dispense with the ordinary protections that the Constitution affords the accused. Now it has backtracked in one of the most prominent cases and done precisely what it said it could not do-- treat Padilla as a criminal defendant.

The reason is not difficult to discover. The Administration counted votes and figured that even with a replacement for Justice O'Connor, it would likely lose in the Supreme Court. (The four dissenters in Rumsfeld v. Padilla thought Padilla was unconstitutionally confined, while Justice Scalia, who joined the majority, made clear that the September 18, 2001 Authorization for the Use of Military Force did not justify detaining a U.S. citizen, because the AUMF was not a legitimate suspension of the writ of habeas corpus).

By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. (See Marty Lederman's post here for an analysis).

That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.

You may recall that, following the Hamdi decision last year, the Administration decided not to give Yaser Hamdi a hearing, but instead released Hamdi to Saudi Arabia, extracting in return a surrender of Hamdi's U.S. Citizenship and a promise that he would not sue. Now it has indicted Padilla to avoid facing a simliar rebuff by the U.S. Supreme Court. In both cases, the Administration argued that that it was of the utmost necessity to detain them indefinitely and that it could not give these men the constitutional protections ordinarily afforded criminal defendants without severely damaging national security. These assertions now ring hollow-- Hamdi is free, and Padilla is in the criminal justice system.

The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it.


Is the case really moot? Has the government promised that it will not send him back to the brig if he is found innocent or they will not rearrest him after he serves a sentence?

Issues regarding the legality of his confinement are still relevant to any trial. It would be hard to claim he has been given a speedy trial after three years of delay. A remedy might be appropriate if the initial classification of enemy combatant was unconstitutional.

And the bar for mootness is lower than that for standing.

Might Padilla be able to vacate the 4th Circuit's decision? See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994)(noting general rule of vacatur where appeal is mooted as result of "unilateral action of the party who prevailed below").

Can Padilla have the indictment dismissed on Sixth Amendment "speedy trial" grounds?

Would (or could) such a request be appealed up to the Supremes?

Professor Balkin's analysis strikes me as the most pessimistic possible view of the case. It is true that Mr. Padilla has already been deprived of his freedom for three years. On the other hand he was not thrown in an oubliette and forgotten. His case received a lot of attention in the courts and in the public forum. Now he has what he asked for. The length of time it took is onerous. On the other hand, this is a novel and uncertain area of the law for the executive, the courts and the defense bar. The system worked slowly but it worked. In my view, the Congress and not the courts are to blame for the lack of clarity on the protection of American citizens on American soil -- to put it more strongly, I think it is a disgrace that we even need to mention the Geneva Convention in the context of American citizens arrested by American authorities. But the bottom line in Mr. Padilla's case is that it is not at all clear that he has been denied due process so far and he will have his chance in the trial court to demonstrate whether he has been treated unjustly.

Scribe, there is no cause of action personally against federal employees acting under color of federal law. Sovereign immunity. A claim for damages is allowed against the United States herself in its place. As somebody who has walked into a courtroom more than a few times, I would love to be the attorney defending such a claim before twelve jurors. Mr. Padilla is in no way a sympathetic plaintiff and he has no Fifth Amendment rights in a civil action he has initiated. I could probably get the jury to award me his organs for transplantation in my counter-claim for the costs of his arrest, incarceration and prosecution. Professor Balkin is hunting exactly where the ducks are -- the protection of American citizens from the power of the executive in the war against terror. I simply think that he is taking too pessimistic a view of our legal system and our government. To paraphrase Hamlet, "What is Padilla to Bush [although only Padilla knows what Bush is to Padilla]". Why should our government waste its resources on the harmless? I believe that the executive in good faith identified a danger to the people of the United States but the legal framework did not exist for its efficient and expeditious abatement within the protections we have come to take for granted as Americans. As I said in my previous coment, I blame the Congress.

If Padilla can be imprisoned without charge for three years, none of us is safe. And I say this as a sometime Bush supporter. I am wondering where the outrage is (in the MSM)?

Please see Harlow v. Fitzgerald, 457 U.S. 800 (1982) for a very good overview of the application of absolute vs. qualified immunity to federal officials following Bivens.

"If Padilla can be imprisoned without charge for three years, none of us is safe."

The "he's a US citizen arrested in the US" fact that dissenters harp upon is accurate but misleading, since SCOTUS in 1942 drew the line slightly differently. Under ex parte Quirin, the fact that he was arrested upon entering the country is key. If that precedent did not exist, they could have arrested him before boarding, or redirected the plane; some difference.

"A good argument can be made that because the indictment is on different grounds than the reasons previously given for detaining Padilla, those prior grounds did not exist."

If you take bad faith as your premise, the "argument" will look good. On the other hand, if you presume the government is acting in good faith you will believe that the initial charges needed to stay out of open court for practical reasons such as not burning sources.

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