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The Collective
Monday, May 14, 2007
By Dr. Steven Taylor

His trial starts today. Via the CS Monitor: A first look at US case against Padilla

Jose Padilla has been held in solitary confinement for five years, enduring what experts say is some of the harshest treatment of any convicted criminal in the US. Yet he has not been convicted of a crime.

On Monday, federal prosecutors will attempt to convince 12 jurors that Mr. Padilla is a criminal and that he deserves to remain behind bars for the rest of his life. In their opening statement to the jury at the start of an expected four-month trial in federal court here, prosecutors will for the first time publicly reveal their blueprint for the government’s case against Padilla.

His alleged crime: becoming a willing recruit to participate in a violent Islamic holy war. Specifically, Padilla, a US citizen who converted to Islam in the 1990s, is charged with signing a “Mujahideen Data Form” and attending an Al Qaeda training camp in Afghanistan. He also made comments on the telephone overheard and recorded by US intelligence officials that prosecutors say are evidence of a criminal conspiracy.


Padilla was held without charge as an enemy combatant for three years and eight months. Military interrogators questioned him about his alleged involvement in a plot to detonate a radiological “dirty bomb” in the US and about his suspected knowledge of Al Qaeda. After his indictment in November 2005, Padilla was transferred to the criminal justice system and is being held in pretrial detention in a special isolated, high-security wing of the Federal Detention Center in Miami.

Because Padilla’s military detention and interrogation were conducted in violation of a string of his constitutional rights – such as his right to remain silent and consult counsel, and his right to due process – government officials have acknowledged that information obtained by the military would most likely be excluded from the trial. As a result, federal prosecutors have been forced to cobble together their case from evidence obtained through other means.

Despite Padilla’s notoriety as the alleged “dirty bomber,” his indictment does not mention that suspected plot. Thus, the government’s case against Padilla appears to be thin, some legal analysts say.

While the initial allegations against Padilla were quite serious, it would seem that they were not as dire in reality as they were in theory. Consider, for example, the lack of additional arrests in regards to a dirty bomb conspiracy, not to mention the lack of radiological materials needed to construct such a device. It is not at all unreasonable to assume that had there been an actual plot to detonate such a device, that there would have been other arrests in the case and that materials would have been seized. Certainly given the obvious willingness of the administration to use extraordinary treatment of Padilla (i.e., his arrest and detention sans charges for years) one would guess that they did their best to extract whatever information that they could from him during those years in military prison. That nothing of grave consequence emerged from that process suggests that Padilla is either a superspy of fantastic resolve, or a thug who got caught up in a nightmare scenario.

We have to remember that Padilla is a citizen of the United States who was arrested on US soil. As such, he has (or should have had) constitutional protections, including the right to counsel, and attorney and the right not to self-incriminate. If we throw those things out (as we did in this case) just because we think that there might be a crime or because the suspect appears scary in some way, we are betraying the very basis of our democracy.

Some may say “what if there really was a dirty bomb and we had to find out where it was ASAP?” To which I would note that such a plot would require multiple persons and like any criminal conspiracy, it is possible, once clues and leads are discovered, to find out what is going on. Like the recent events in New Jersey, once it was clear that some of the suspects were involved it was possible to track down the rest and to obtain material and planning documents and the like. If Padilla had been involved in a plot, it would have been possible to have figured that out like we do with other criminal activities and conspiracies. It is not like our only recourse is multi-year detentions of persons sans charges just because we find them to be suspicious.

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  1. “We have to remember that Padilla is a citizen of the United States who was arrested on US soil.”

    You don’t happen to know to what extent citizens of other nations are protected against, as I would call them, grave human rights abuses? It’s not that I’m planning to go anywhere near the US (I’m told you all carry guns, too), but I have been mildly surprised to see great outrage at the treatment of Padilla by some people who don’t bat an eyelid at similar treatment of foreigners.


    Comment by james — Monday, May 14, 2007 @ 8:36 am

  2. Well, a few thoughts:

    A) I hope you aren’t referring to me.

    B) I haven’t actually seen as much outrage over Padilla as their ought to be.

    C) The Padilla case is pretty clear cut, making criticism pretty easy.

    D) Are you are referring to Guantanamo or other detentions outside the US or some other case? I can’t think of a foreign citizen arrested on US soil and treated as Padilla was treated. That is not to justify Guantanamo, but I am just thinking in terms of direct comparability.

    E) No, we don’t all carry guns.

    Comment by Dr. Steven Taylor — Monday, May 14, 2007 @ 8:49 am

  3. While (IIRC) Padilla was originally arrested through normal protocol, he ended up being transferred to the Department of Defense to be held as a military enemy and not as an accused criminal. The fact that he wasn’t charged with a crime isn’t a surprise. Not that we should look to the 1800s for legal precedent, but how many of the Southerners held in Union prisons were charged as criminals? In the end, Jefferson Davis was not charged with treason, although he was held in federal prison for a couple of years.

    So, is this a loophole to get rid of citizens’ rights? Legally, it’s a different beast, but in practice it is the same result. OTOH, I can be forcibly committed to a mental hospital and held against my will indefinitely without ever being convicted of a crime. And, IIRC, the standard of proof is much lower for that than for being convicted of a crime. If you want to start closing loopholes, you might find a few more than you are expecting.

    Comment by Max Lybbert — Monday, May 14, 2007 @ 2:25 pm

  4. Insanity and criminality are two different things.

    And do you really want the President to have the power to detain whomever he pleases because there is a suspicion that the person in question might be a terrorist?

    Comment by Dr. Steven Taylor — Monday, May 14, 2007 @ 2:33 pm

  5. Replies to your thoughts:

    A) I am definitely not referring to you.

    B)+ C) True, most of the outrage I have seen comes from “leftist” sites and blogs, but this matter also apeears in newspapers that are usually fairly uncritical of your Admin. Perhaps it is due to this situation being particularly “clear cut”. Or perhaps it is due to the fact that Padilla is an American and not one of them foreign types. Closer to home…

    D) I was thinking, in general, about Guantanamo, the renditions and foreign torture agreements, but, in particular, about the applicability of “Constitutional” rights to foreigners. I believe the Constitution specifies Americans in its wording, but I was curious as to the applicability to all peoples of the Declaration of Independence and the Universal Declaration of Human Rights. I suppose they are “non-binding” documents, but I wondered if they can be invoked in the US courts.

    E) I realize you don’t all carry guns, but since Bush I tend to picture all Americans as paranoid, gung-ho, trigger-happy cowboys. It suppose helps me come to terms with his reelection and all the passivity in view of the Iraq lies …

    Comment by james — Monday, May 14, 2007 @ 3:35 pm

  6. A) I didn’t think so, but thought I would make sure.

    B-C) I think that Padilla gets the most attention because it is the clearest cut and because the basic details are fairly well known. I have seen a great deal of criticism about renditions and the Gitmo.

    D) The whole point of the rendition and Gitmo is to avoid the constitution, quite frankly. If one looks at the first WTC bombing one sees foreign terrorists getting a regular trial.

    E) I figured as much.

    Comment by Dr. Steven Taylor — Monday, May 14, 2007 @ 4:18 pm

  7. Yes, insanity is different from criminality; but if we are looking at long-term detentions without trial, it’s relevant (”danger to himself and others”). Likewise, I don’t *want* the President to have the ability to detain people for long periods of time, but that horse already left the barn (even aside from insanity, there’s the matter of “material witness” arrest warrants).

    My point is that Padilla’s detention doesn’t follow the patterns that we expect for someone arrested and charged with a crime. But there’s no reason that it should, as he was not being held as a criminal until recently. He was being held under the same legal theory that we held thousands of Confederate soldiers who were never charged with anything.

    I’ve said before in other forums that if Al Qaeda wanted to trade prisoners, I’d been fine if we sent Padilla back in exchange for some US soldiers. But, of course, Al Qaeda never bothered to capture any prisoners.

    Comment by Max Lybbert — Tuesday, May 15, 2007 @ 6:22 am

  8. Max,

    I think you are severely underplaying what happened here: the man was held in solitary confinement and subjected to treatment that was in line things done to political prisoners in the Soviet Gulag (and no, I am not engaging in hyperbole here-check with Solzhenitsyn: the tempature extremes, the stress positions, etc.).

    He was a US citizen arrested on US soil and held on mere suspicion and was denied his constitutional rights for over three years. That does not compare to institutionalization (which requires an extensive legal process in which one is represented by counsel), nor does it compare to the ability to briefly hold someone as a material witness.

    The problem with your thinking is that you are assuming guilt (which has not been proven in a legal process) and therefore you are accepting the treatment as legitimate.

    That’s the problem: assuming that the government has sufficient information and competence to know who is guilty or not just because they think so and then for us as citizens to accept it because, after all, they are just trying to keep us safe.

    Remember: the preponderance of the right delineated in the Bill of Rights are to protect us from the state’s ability arbitrarily declare us criminals (see the IVth, most of the Vth and VI-VIII. It is all about due process and the notion that the government has to go through laborious steps to classify anyone as a criminal.

    Comment by Dr. Steven Taylor — Tuesday, May 15, 2007 @ 8:05 am

  9. I’m not assuming guilt. I am aware of the differences between what happened to Padilla and the other ways the government can hold someone without criminal charges. I am simply raising them as examples of the fact that the government’s ability to hold people without criminal charges is nothing new.

    The bigger point is that Padilla’s detention doesn’t follow the patterns we would expect from somebody held as a criminal, but until recently he was not held as a criminal. Neither were thousands of Confederate prisoners. Neither were 1700 German prisoners who were shipped to Arizona during World War II ( ). Neither were thousands of prisoners captured in the conflicts in Korea or Vietnam. When the military captures people on the battlefield, whether that’s Afghanistan, Bosnia, Iraq, Grenada, Libya, Syria or anywhere else, they don’t tell the prisoners they have a right to remain silent. That has nothing to do with guilt or innocence. It has everything to do with the difference between enemy detainees and criminal defendants.

    There are details of Padilla’s case that are disturbing: he was transferred from criminal custody to the Department of Defense. OTOH, so were the Germans in Quirin). He was not picked up in Afghanistan (again, however, so the same applies to the Germans in Quirin). And, as you’ve mentioned, we haven’t heard of any follow-up actions based on information that he’s turned over in interrogations.

    But wringing your hands over whether any President should have the ability to hold somebody without criminal charges or a trial is pointless: he’s had that authority for a very long time.

    Comment by Max Lybbert — Tuesday, May 15, 2007 @ 3:48 pm

  10. Well, no.

    All the examples you cite are cases of open warfare or one type of another. And in all the other cases, save for the rather unique circumstance of the US Civil War, we are talking about foreign nationals. There is absolutely no analogy to be made here. It is illogical to assert that Germans captured during a declared war are somehow in the same legal category as a US citizen.

    The Padilla case is one in which the President unilaterally declared, sans hearing, that a US citizen, apprehended on US soil, was an “enemy combatant” and then held him in military custody for over three years. That is unprecedented.

    If you want an analogy you would be better off with the internment of Japanese Americans on the West Coast during WWII, although I consider that to have been an unconstitutional abomination, so it won’t score you any debate point with me-but it is closer than anything you’ve listed.

    I would not, btw, consider what I am doing “hand wringing”-I would consider it trying to draw attention to a serious issue. Still, I know that I lot of folks find it to be much ado about nothing, if they are paying attention at all.

    Comment by Dr. Steven Taylor — Tuesday, May 15, 2007 @ 4:55 pm

  11. /* All the examples you cite are cases of open warfare or one type of another.

    Yes, I know that. And Padilla was declared an enemy combatent in association with the open warfare taking place in Afghanistan.

    /* And in all the other cases, save for the rather unique circumstance of the US Civil War, we are talking about foreign nationals.

    Each case I cited had a different purpose. For the most part, we don’t go through the trouble of shipping POWs overseas, except we did in WWII. Likewise the references to Vietnam and Korea were to underscore the difference between being held as a criminal suspect and being held as an enemy prisoner (just as references to material witness warrants or forcible institution were to underscore that not all detention is based on criminal activity). Until now, Padilla’s been an enemy prisoner. The US isn’t officially trying to punish him; he’s only being detained so that he won’t return to Afghanistan and report to his old commanding officer.

    I don’t see a moral difference between detaining US citizens and non-citizens. I checked into it, and lo and behold, the Non-Detention Act of 1971 provides protections to US citizens without extending that protection to foreigners. However, Hamdi (about another infamous US citizen) settled the issue that the Authorization to Use Military Force is an act of Congress under the Non-Detention Act (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”). Hamdi did put a due process requirement on the military if it wants to continue to detain somebody, citizens or non-citizens (”The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized”).

    So we’re back to “detaining a suspected enemy during war is very different from holding a criminal suspect.” I don’t think we’re ever going to get past that.

    Padilla is not the first American accused of making war against his country. Others have been held, without trial, as POWs, most notably in the Civil War. However, one of the German spies in Quirin was a US citizen (Herbert Hans Haupt). He was not only held as an enemy prisoner in Quirin, but also tried in a military court and executed. Padilla’s previous case (the habeas petition) would have been easily won if his lawyers had been able to find a case where one of the other Americans accused of making war against the US had succesfully filed a habeas petition. However, they apparently could not find any such case. It looks like the idea of POWs filing habeas petitions never occurred to anyone before 2001. It’s almost as if all previous wars assumed that enemies would be captured, held as prisoners, and sometimes even traded for captured Americans; all the while without filing criminal charges. I wonder why that is.

    Comment by Max Lybbert — Wednesday, May 16, 2007 @ 12:07 am

  12. Max,

    The problem with your reasoning is that you are assuming that the Padilla ought to have been treated as a enemy combatant from the get-go. Certainly if you think that to be the case, then

    The problem with that thinking, and which does not comport with your examples (which I still contend don’t fit the discussion), is that the only reason he was declared an enemy combatant was fiat by the administration.

    You accept that this was somehow legitimate; I don’t. Since you accept a premise of the behavior that I see as flawed, I don’t think we are going to get anywhere. I suppose that we could argue about some more, but I fear we still wouldn’t get anywhere.

    None of your examples justifies what was done (indeed, none are directly analogous) and indeed the Hamdi ruling works for my position.

    The German spies case is the closest, but they were captured actually actively engaging in espionage and actually got a trial.

    The fact that Padilla ended up not being involved in any massive dirty bomb plot underscores that the government ought have dealt with him differently. Certainly he could have been arrested and questioned.

    Again I state: it is highly problematic (to put it diplomatically) for a president to issue orders that a specific US citizens be held without counsel and for an indefinite period of time. That violates the Constitution.

    Comment by Dr. Steven Taylor — Wednesday, May 16, 2007 @ 7:46 am

  13. I think you’re right that we won’t get any farther. I agree that there are things that are troubling about Padilla, and I agree on what some of them are: the transfer to Department of Defense custody, not actually picked up on the battlefield, and the lack of any news about follow-up action on people he would have fingered.

    The lack of a trial doesn’t bother me that much. I’ve laid out my reasons why. I’m concerned about whether he should have been transferred to the DoD’s custody, but once he’s there he’s not a criminal and his detention won’t look like a criminal detention. It’s an open question of whether he should be there.

    I believe the reason he’s now being tried as a criminal is because of Hamdi: the Administration either needed to hold a hearing about whether he truly is an enemy combatant or needed to change his status to something else, say, “criminal.”

    Overall Hamdi stands for limits on how the military can detain people (or, in the language of Hamdi “continue to detain” people). But on a lower level, it also validates the military’s *ability* to hold people as prisoners instead of as criminals.

    Comment by Max Lybbert — Wednesday, May 16, 2007 @ 6:29 pm

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