Padilla Perplex

Everybody's favorite alleged dirty bomber is back in the news. The feds have (finally) (publicly) outlined their case against Jose Padilla, who's accused of scheming with Al Qaeda to plant nuclear devices and blow up other buildings.

That knowledge, says the feds, comes from interrogations of him and associates over the past two years while Padilla has been in custody.

Why is the government talking about Padilla now? The most likely reason is that the Supreme Court is about to rule on whether it's legal to keep citizens incarcerated indefinitely as "enemy combatants." From one news account:

With the Justice Department under pressure to explain its indefinite detention of a U.S. citizen as an "enemy combatant," [Deputy Attorney General James] Comey outlined a series of alleged admissions made by Padilla. He asserted that if Padilla had been handled by the more conventional criminal justice system, he could have stayed silent and "would likely have ended up a free man."

The Supreme Court is considering Padilla's challenge to the government's authority to designate U.S. citizens enemy combatants and deny them quick access to lawyers or courts.

Padilla's lawyer, Andrew Patel, said the government once again is saying "bad things about" about Padilla without offering a "forum for him to defend himself." He accused the government of making "an opening statement without a trial."

Comments

[thoreau]

Whenever such cases come up there are inevitably some posters who argue that under various legislation and Supreme Court precedents Padilla's detention is 100% justified. Since I'm no lawyer, let's just say for the sake of argument that these posters and that Padilla's detention as an enemy combatant is completely within the letter and spirit of the law.

Let's further assume, for the sake of argument, that it was a good idea to initially detain him in this manner. There are plenty of things that may be lawful but are still bad for freedom, but let's just assume for the sake of argument that Padilla's detention poses no threat to American freedom.

(I have a hunch that a particular poster will argue with me, but please understand that I'm just conceding these things for the sake of argument at the moment, not as a general concession that indefinite detention is a good idea. I want to address a particular issue, so I'm trying to avoid other issues.)

Now that he's (allegedly) spilled the details of his conspiracy, can anybody think of a good reason to deny him a trial? If he's really as guilty as the federal government insists, what's the harm in letting 12 jurors look at the incontrovertible evidence gathered by our efficient and infallible federal government and then hand down a life sentence? It may be redundant with the current situation, but it would keep wimpy liberaltarians like myself quiet.

So what's wrong with putting him on trial now?

[SR]

It's simple thoreau: if suspects get due process under the law, then the terrorists have won. Representatives from the DHS will be by shortly with some informational pamphlets that explain more. And don't worry about providing your address... THEY KNOW WHERE YOU ARE!

[jbd]

Answer: they can't try him using his admissions because he was not allowed to be represented by a lawyer during his interrogation and was not charged or released within 48 hours, two requisites for use of his self-incriminating statements. If the other information they have against him is from other detainees whom they do not want to present in court for national security reasons (including Khalid Sheik Muhammed), then they can't use that in court either, because it would violate Padilla's right to confront his accusers.
So here's the dilemma: they may have reliable information that he is dangerous and guilty, but nothing than can use in court.
I'm deeply troubled by the Padilla case (it just can't be that the government can strip any citizen it chooses of all constitutional protections by attaching a label on him--"enemy combatant"--at their discretion). But what can we do here? If he's a determined terrorist, we don't want to turn him loose, either. Maybe the solution is some kind of adversarial judicial review of the detention before a secret court, with attorneys who have obtained appropriate security clearances. "Secret courts" should be unacceptable in a free society, but if some kind of adversarial and independent process is provided, that's bettet than what has been afforded so far, and maybe the least imperfect solution.

[thoreau]

jbd-

You're right, it's certainly an interesting situation that the government has created. It claims to have proof that this guy is a danger to society, but it broke the law to obtain the proof so the only way to imprison him is to do it without the normal protections of a normal trial.

"See, we broke the rules, and now we have no choice but to break even more rules. But don't worry, because we'll never, ever abuse the new powers that we're claiming for ourselves. We're from the government, and we're here to help."

I don't know the best course of action to take in dealing with Padilla. Maybe the gov't will be able to find corroborating evidence and obtain it lawfully, making it possible to prosecute him as per the normal procedures, and then this whole problem will just disappear. But if that doesn't happen, I have no strong opinion on what the best recourse is.

What I do know is that the gov't shouldn't be allowed to do this again, because once they start they create a mess that can't be resolved by the normal judicial process.

[Larry]

Didn't everybody watch the 9/11 hearings? It is the job of the Bush Administration, and the Bush Administration alone, to be omniscient--to stop every potential crime that could possible occur by terrorists at all times throughout the world, and if they miss even one little clue, they are to be held responsible are should all resign. With this sort of duty, why should they give the slightest break to Jose.

[Phil]

Two words: "Shot escaping."

I'm kidding, I'm kidding!

. . . or am I?

No, seriously. I'm kidding.

[joe]

Maybe something on the model of civil confinement hearings for serial sex offenders?

[John Ashcroft]

You shut your mouths!
How can you say I deal with terrorists the wrong way?
I am human and I need to abuse power, just like everybody else.

[JDM]

We need some constitutional amendments for dealing with POWs and the like. It looks like a big hole in constitutional law to me.

[thoreau]

Mr. Attorney General-

I googled your post because it reminded me of a song I used to hear on the radio. Am I correct in guessing that you are the son and the heir of a shyness that is criminally vulgar?

[JohnnyM]

Nah, he's the son and heir of nothing in particular.

[joe]

"Irish Blood, English Heart" is as good as the old stuff.