A Bump on the Way From Brig to Jail

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The U.S. Court of Appeals for the 4th Circuit was happy to let the Bush administration lock up an American citizen and throw away the key based on nothing more than the president's determination that the prisoner was an "enemy combatant." But now that the government wants to transfer the guy back to civilian custody and give him a trial, the court is objecting. It's hard to tell exactly what's going on from the accounts in The New York Times and The Washington Times, but it sounds like the judges are pissed off that they went out on a limb to give the president unprecedented detention authority that he has decided not to use after all.

The 4th Circuit has asked the government and lawyers for accused terrorism supporter Jose Padilla to submit briefs on the question of whether the court should rescind its enemy combatant decision. The court suggests that perhaps it should reconsider its ruling "in light of the different facts that were alleged by the president to warrant Padilla's military detention…and the alleged facts on which Padilla has now been indicted." Perhaps I'm reading too much into that, but it seems as if the judges are having second thoughts about trusting the administration's assertions that Padilla planned to detonate a radiological bomb in a U.S. city and/or blow up apartment buildings by sabotaging their natural gas supplies–allegations that are conspicuously absent from his criminal indictment.

I'm not sure whether to hope that the 4th Circuit withdraws its ruling. If there's still a chance that the Supreme Cort will review it–a prospect that switching Padilla to civilian custody seems designed to avoid–it might be better for the decision to stand, so it can be definitively reversed. Critics of the administration's enemy combatant policies argue, plausibly enough, that the president's detention authority is still a live issue because Padilla could be sent back to the brig after being acquitted.

NEXT: 1,000 Points of Fright

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  1. Why not just let him go?

  2. Walter-

    OK, but he bunks with you then.

  3. Now Thoreau, he bunks with a secret agent. That might yeild a lot more leads than this prosecution has apparently thus far.

  4. should be “No thoreau” I cannot type fast today.

  5. should be “No thoreau” I cannot type fast today.

  6. I think the problem here is that the type and sources of information that would support keeping someone in military detention is not the suitable for a civilian trial.

    During the Cold War, it often proved difficult to try people for espionage because the defendants would threaten to reveal in open court the information that they had stolen and to reveal the governments anti-espionage techniques and sources of information.

    Civilian trials rely on the idea that every facet of the states evidence and investigation be publicly revealed and examined. This causes problems even when investigating organized crime. Extending that standard to covert military matters is untenable. It would mean destroying all the intelligence resources used to track and catch terrorist every time an individual was brought to trial.

    If we want to try Padilla in a civilian trial then it is likely that the government will not wish to reveal why it thinks he was trying for a mass-casuality attack or how it came by that information. Convicting him on some other charge would accomplish the same functional outcome with jeopardizing intelligence sources.

  7. Shannon-

    So, we survived British invasion during the early republic, we survived a civil war, we survived Nazism, and we survived the Commies. But a few thousand fanatics are enough to warrant trashing our bill of rights?

  8. I dunno, Dave, you typed those two posts pretty fast.

  9. OK, my previous post skipped over the fact that we had a lot of civil liberties violations during those episodes in our history. Maybe the better question to ask is how much good it did us to deny US citizens a trial before a jury of their peers?

    And we should also note that in some of those situations (e.g. War of 1812, Civil War), there were areas where civilian trials would have been logistically impossible due to, well, open warfare on US soil. In the current conflict, however, we have the facilities to conduct a trial by jury without the war getting in the way.

    What worries me is that they’ll start to use this “enemy combatant” thing to try drug traffickers. And then associates of drug traffickers.

  10. it sounds like the judges are pissed off that they went out on a limb to give the president unprecedented detention authority that he has decided not to use after all.

    that’s what happens sometimes when you’ve become the bitch of the executive.

    This causes problems even when investigating organized crime

    and yet we try organized crime figures, don’t we, ms love? and effectively. this very fact is enough to put the lie into the idea that special government powers are now needed to prosecute terrorists that didn’t exist before.

    If we want to try Padilla in a civilian trial then it is likely that the government will not wish to reveal why it thinks he was trying for a mass-casuality attack or how it came by that information.

    but here we get at the heart of the problem — the government considers its apparatus to be too valuable to risk even in doing what it is designed to do. this isn’t rational — it’s a subsumption to the cult of secrecy, the vague idea that everything in the executive that the executive wants to hide should be kept out of the light, without any examination.

    if that notion continues to gain traction, we’ll have built the unassailable vehicle of our own tyrants.

  11. It has been widely suggested in legal circles that the Padilla indictment was driven by the desire to moot the appeal of the original decision (which would thus keep the decision on the books, allowing ‘enemy combatant’ incarcerations.) The 4th circuit is no dummy, and might not be buying the ruse.

  12. I think Pooh has it. This is not an unusual thing. Ken Lammers explains.

  13. thoreau,

    “But a few thousand fanatics are enough to warrant trashing our bill of rights?”

    In the past we did not have face the very real possibility that a few dozen individuals, based literally anywhere in the world, could carry out a mass-casuality attack anywhere else in the world while maintaining anonymity. As technology progresses, a “few thousand fanatics” acquire the technical ability to kill millions. 9/11 was just a shot across the bow.

    It is less the actual attacks I fear than the political consequences of they will drive. I believe that long term that civil liberties are more endangered by ineffective government that cannot prevent violence and disorder than it is by a slightly to powerful government that maintains peace and order.

    In all the history of the Western world, no state has ever slipped from liberty to tyranny by the gradual accumulation of power by the state. Instead, impotent states have collapsed rapidly into tyranny because people so feared violence and disorder that they grant a man on white horse sweeping powers to protect them.

    Have you thought about the likely civil rights consequences of a nerve gas attack on an American city that kills 50,000 people? I think in response the electorate will support sweeping draconian measures that will make the PATIOT act look like an ACLU bake sale. A series of such attacks and we would be living in a police state in short order.

    Had we been just a little more aggressive in pursuing terrorism prior to 9/11 we would not be having this discussion now. I don’t want to having a discussion 5 years from now about our new mandatory neck chips because some yahoos from Bumfuckistan wiped out Miami.

    The world has changed. Wars aren’t fought like they used to be. Our political and legal institutions have change to adapt or they will collapse catastrophically.

    “What worries me is that they’ll start to use this “enemy combatant” thing to try drug traffickers. And then associates of drug traffickers.”

    This is a major worry of mine as well which is why I advocate making a clear delineation between civilian criminals and those individuals who carry out military attacks.

    I believe that civil liberties will best be protected by defining terrorism as a purely military problem which will be handled by largely military methods. I think that the expansion of tools created to stop terrorism into non-terrorist crimes will be more difficult to stop if we insist on treating terrorist in the same manner as civilian criminals.

    I think we should create an entirely separate legal system to deal with terrorism.

  14. I believe that civil liberties will best be protected by defining terrorism as a purely military problem which will be handled by largely military methods. I think that the expansion of tools created to stop terrorism into non-terrorist crimes will be more difficult to stop if we insist on treating terrorist in the same manner as civilian criminals.

    I think we should create an entirely separate legal system to deal with terrorism.

    Alright, Shannon. I’ve been saving up this scenario for a little while. I tried to make it as close as possible to Padilla. Time to unveil it:

    Say that a guy named, oh, Jorge Parrilla, is born and raised in the US. He joins a gang, goes to prison for gang-related crimes, and serves his time. You can assume, if you like, that in prison he converts to Islam, but religion won’t motivate much of what happens next in this scenario. After prison he starts taking his orders from a foreign group. Only Parrilla is taking his orders from a foreign drug cartel, not religious fanatics. (If you like you can even say it’s a Central Asian opium cartel, albeit one that doesn’t give a crap about religion.)

    At some point Parrilla goes overseas on business. Now, some have alleged that Padilla fought against US forces in Afghanistan, and that changes his legal status even though his arrest was on US soil. Well, to keep this analogy as close as possible, if you like you can stipulate that my hypothetical Jorge Parrilla fights against US military personnel who are destroying opium fields or seizing shipments or whatever, since the US government has been known to use the military to fight the drug war (e.g. Plan Colombia).

    Anyway, Parrilla comes back to the US, where he’s captured by the authorities and accused of plotting murder. OK, not a dramatic mass-casualty attack like Padilla was supposedly planning, but more than one intended victim. They could be rival drug dealers, or former associates who turn state’s evidence, or cops who are getting in the way, or whoever. If you like, you can even assume that the weapon of choice is a bomb, albeit not of the type Padilla was allegedly planning to use.

    Should this drug cartel hitman be put on trial for conspiracy to commit murder (and possibly other criminal charges), or should he face a parallel, military-flavored legal system?

  15. Maybe the better question to ask is how much good it did us to deny US citizens a trial before a jury of their peers.

    If Padilla stays in the naval brig, he’s still get a jury of his piers.

  16. Anyway, Parrilla comes back to the US, where he’s captured by the authorities and accused of plotting murder. OK, not a dramatic mass-casualty attack like Padilla was supposedly planning, but more than one intended victim.

    Let’s tweak the scenario by saying he’s come back to the USA to poison the illegal drug supply of a rival, leading to large potential injuries and death on a mass level.

  17. Matthew-

    Maybe we could say that he’s going to slip a deadly virus into a bag of cocaine. And the virus will be released if Ramon Salazar isn’t released from jail. So with the clock ticking we have to torture somebody!

    Oh, wait, that was a TV show. I have a hunch that some people around here (not talking about you) don’t quite get the distinction.

  18. “In all the history of the Western world, no state has ever slipped from liberty to tyranny by the gradual accumulation of power by the state.”

    Except for Germany circa 1920 to 1941… And Italy circa 1922 to 1938… (Since you are now limiting your claim to “the Western world”, I’ll omit the Soviet Union, Japan, and several other examples that disprove your point.)

  19. thoreua,

    “Should this drug cartel hitman be put on trial for conspiracy to commit murder (and possibly other criminal charges), or should he face a parallel, military-flavored legal system?”

    He should be tried as a civilian criminal since there was no political motive to his crimes. None of the other details you presented are relevant.

    A counter example to your hypothetical would be an extortionist who threatens to kill thousands unless the authorities pay a huge ransom. Since his goal is personal enrichment, he too would be a civilian criminal regardless of the number of people he threatened.

    A grayer example would an economic criminal like a drug lord that funds terrorism as a means of sowing political chaos so that he can operate more freely or someone with political motives who uses crime to finance their activities.

    An act of violence becomes a military act when its perpetrators seeks a political benefit instead of an economic or personal one.
    Civilian criminals act out of personal selfishness, military criminals act out of idealism, however warped. It is precisely this differences in motivation that make investigating, prosecuting and deterring terrorism a fundamentally different practical and legal problem than prosecuting ordinary crime.

  20. So the tractor guy who threatened explosives on teh DC mall over declining tobacco subsidies was a ___________ and should be handled by the (choose one) military courts, the terrorist rules, or criminal court.

    http://www.foxnews.com/story/0,2933,81411,00.html

  21. Shannon-

    You know, I’ve heard some good arguments for abandoning ordinary criminal procedures in cases like I described. The best argument is one that Jason Ligon, among others, has advanced on this forum: That terrorist groups tend to do some of their planning in foreign lands with governments that are either too weak to do anything about it, too lazy to do anything about it, or even actively supportive of it. Under such circumstances, you can’t serve warrants, conduct wiretaps, have officers stake out a location, collect evidence with all the normal procedures and chains of evidence that would be expected in civilian court, etc. etc.

    Jason makes a good point about a very real challenge to our procedures. I have given serious thought to going along with slightly weakened procedural protections in cases that involve significant activity in a foreign land with an ineffective, indifferent, or hostile government. Not the sort of things that the Bush administration would like, but something short of what the ACLU would like.

    You, however, aren’t talking about those issues. You are talking about denying people the protections of our ordinary processes based on their motives. To which I would ask, do we take the government at its word about the motives of a defendant?

    What if my hypothetical hitman comes to the US to kill a district attorney? Or a judge? At what point does the motive become sufficiently political to deny him the protection of our ordinary procedures?

    And a few years ago we all heard about a guy selling untaxed cigarettes to support terrorism. What if we’ve got two Arab dudes selling those cigarettes, and one of them spends his share of the profits on Jihad, while the other one spends his profits on hookers and weed? Does one of them get sent to a military court while the other goes to the downtown courthouse?

    Finally, I am skeptical of the notion that law enforcement can’t find ways to infiltrate radical groups motivated by ideology. The KKK was infiltrated by the FBI. Violent leftist groups in the 1970’s were, as I recall, sometimes infiltrated by informants.

    So, basically, if you had suggested that Mr. Parrilla should be sent to a military court if most of the evidence was collected in Tajikistan (a place ruled by gangsters), well, I could see your point. But you suggest that what really matters here is motive. And that I cannot countenance.

    I realize that the law frequently deals with issues of motive and intent. We sometimes debate on this forum as to whether or not that is a good thing. Whatever one might feel on the significance of motive, it is preposterous to think that motive should be reason enough to abandon the ordinary protections of our judicial system.

  22. Also, if your goal is to erect a wall between terrorism and other crimes, be very wary of making political motive the criterion: Anybody who engages in civil disobediance runs the risk of being labeled a terrorist.

    My preliminary thought on the matter is that if we are going to put terrorists into a category that is neither enemy soldier (governed by international treaties) nor ordinary criminal (protected by the Bill of Rights), the distinction should be made along the lines that Jason Ligon suggested: Activities in places where we can’t obtain law enforcement cooperation.

    I’m not sure how many protections I’d strip away in such cases, but a geographical criterion seems to leave less room for wiggle than something based on the nature of the alleged offense. Can’t convict him of another offense? Just say that he’s a terrorist, and face a lower burden of proof! Every tyrant’s dream!

    Hell, a geographical criterion might even give some weak or lazy governments an incentive to step up their cooperation with the US.

  23. He should be tried as a civilian criminal since there was no political motive to his crimes.

    Since you support different legal responses to the same crimes based upon the intent of the criminal, does this mean you also support hate-crime legislation?

  24. Another scenario: What if a paid assassin tries to kill a politician? His motive is money. Should he go through a military system or the regular civilian courts?

    What if he was hired by people with political motives? Does he get a civilian trial while they get a military trial?

    But what if they killed him because his policies were costing them money? Do they then get civilian trials as well?

  25. thoreua,

    Perhaps we should approach the problem from the other pole. At what point does a violent attack stop being a military problem and become a civil problem?

    If a million people went on a coordinated rampage trying to kill as many people as possible, I presume you would not consider it a grievous threat to constitution if we called out the military to handle the problem? What if it were 100,000, 10,000,1000, 100, 100 attackers?

    As a practical matter, at some point the civil authorities would have enough firepower to handle the problem without the military, so we could draw the line there although there is no legal or conceptual reason to do so.

    But what if a single individual could do as much damage as a million soldiers? Suppose a deranged virologist recreated the 1918 influenza and intended to release it as widely as possible. Would you think it permissible to use military resources and methods to stop him? Would you demand that the military fully reveal all its means and methods in a public trial so the next deranged virologist would know how to avoid capture? Would not doing so really start us on an inevitable slippery slope to executing people for civil disobedience?

    Frankly, I think you focus to much on the examples of the past. In the past, the scale of destruction a group could carry out was directly proportional to the size of the group. In the past, distance was safety. In the past, failing to detect some radical group meant that at most dozens of people could die. These historical restrictions no longer apply. We must adapt our legal responses to contemporary physical reality.

    More importantly, however, you refuse to address my central concern that successful terrorist attacks will drive a near mindless expansion of state power. If you can convince me that the American electorate will tolerate a series of successful attacks that leave hundreds of thousands dead without tossing the constitution out the window, then I will concede that the risk in treating terrorist as a military problem outweigh the benefits.

    Until you allay this fear of mine, we are at a conceptual impasse. I am perfectly aware of the dangers you see. You have not advanced an argument that I have not already considered long ago. It is simply that I perceive the danger to civil liberties from successful terrorism to be far, far greater than granting more police power to the state.

  26. Shannon-

    My concerns here are less on who does the job than on what burden of proof they bear. If the government has to prove its case beyond a reasonable doubt in a public forum, then I feel that my liberty is secure.

    You say that the special tactics needed to stop terrorists are so sensitive that an open trial is simply impossible.

    Yet, in previous posts you said that the difference between a terrorist and a regular criminal is mostly his intent. You said that my hypothetical drug cartel hitman, coming here to set off a bomb and kill business rivals, could get a regular trial in civilian courts. But you implied that if he had been an ideological fanatic coming to set off a bomb of similar size to kill a similar number of people, then a military trial would be necessary.

    Are you saying that the two examples would require such different methods of investigation that one could be safely tried in court, yet the other must be handled in secret?

    If you want to suggest that WMD attacks are something unique, something that must be handled by different methods that simply cannot be revealed in court, we can discuss that. But your previous definition of terrorist didn’t involve the number of casualties, just the motives. I’m trying to figure out whom you want to send to secret trials: Politically-motivated criminals? Mass-casualty attacks?

    If it’s judged by the number of casualties, how big does a bomb have to be to require a different court system? We’ve had bombings on US soil before, and we’ve managed to try those people in regular courts.

    I’m just trying to figure out what you’re proposing. If you want a different justice system for politically motivated violence, I soundly reject that notion. If you want a separate court system for mass-casualty attacks, I want to know how big the bomb has to be, and how direct a person’s ties to the plan have to be.

    It may sound nitpicky to ask how big the bomb has to be, but my concern isn’t the rights of the actual bomber. My concern is that alleged associates of his, people accused of having only peripheral roles, might get caught up in a system with fewer checks and balances. Some guy who’s here on a student visa sets off a bomb, and his lab partner in a college chemistry class is accused of being an accessory on shaky evidence. Or some people who went to the same mosque are charged on weak evidence, but they’re charged in a system with fewer checks and balances. Or somebody who loaned him money is suddenly accused of funding the attack, and sent off to a system with fewer checks and balances.

    Hell, maybe he steals some radioactive material from a hospital, sets off a dirty bomb, and the physics professor who had some long office-hours conversations with him on nuclear physics is charged with lending technical assistance. The professor swears up and down that he had no idea that these conversations were academic, but he’s sent off to a system with fewer checks and balances.

    Finally, I am very very afraid of how the public will respond to a terrorist attack. 9/11 was enough to get people on libertarian forums (ahem) to turn a blind eye to various Sovietesque measures. There’s no telling how many more people might jump on that bandwagon if there’s another attack.

    I’m just not convinced that undermining the checks and balances of our system will keep us safe.

  27. CORRECTION

    When I said: “The professor swears up and down that he had no idea that these conversations were academic….”

    I should have said: “The professor swears up and down that he had no idea that these conversations were anything other than academic….”

  28. Final thought:

    Criminals get caught all the time, even though the government has to tip its hand when putting them on trial. Criminals know that cops use DNA, fiber, wiretaps, informants, etc. Yet somehow the bad boys keep getting caught.

  29. More importantly, however, you refuse to address my central concern that successful terrorist attacks will drive a near mindless expansion of state power.

    The successful terrorist attacks of 9-11 certainly drove an expansion of state power; why have you not considered the importance of precedent in the American legal system? You are basically saying “If we erode the Constitution and give the government extra power NOW it will reduce the chance that the government will take more power LATER;” I actually believe the opposite: if we erode the Constitution and give the government more power now, they’ll use that as an excuse to take still more in the future.

    Or do you really foresee a time when the government–whether ostensibly Republican or ostensibly Democrat–will actually say “Okay, America, we have enough power to fight these here torrorists now. No need to give us more”?

    And I still don’t see how your “political motive” litmus test for whether a person gets a regular trial or a super-secret military one is any different from hate-crime legislation: the same crime will have different penalties based upon what (the government says) your motive was.

  30. This morning’s Washington Post has an article about a German citizen named Khaled El Masri. In December of 2003 he had an argument with his wife and got on a bus to Macedonia to blow off some steam. His name was similar to that of somebody on a watch list. So, on a hunch, he was taken into custody.

    There was an argument in the CIA over whether they should try to verify his identity. They decided to err on the side of caution (well, caution for us, recklessness for him) and send him to a secret prison in Afghanistan. He was kicked, beaten, malnourished, and threatened.

    Eventually they determined that he was who he said he was, and a whole lot of time was spent trying to release him in a manner that would cause as few problems as possible from the standpoint of secrecy and diplomacy. (The fact that being away from his family was also a problem did not enter into the equation.) He went home in May of 2004, only to discover that his wife had moved to Lebanon (no husband, no idea what’s going on, she decides to go live with relatives, and understandably so). So now he’s in Lebanon.

    It would be easy to say that the system worked, and so there’s no need for judicial supervision. But let’s think about this: Maybe there’s a bad guy whose name is similar to yours. (Maybe an Arab immigrant with light skin has adopted an English name to avoid scrutiny. Or maybe a white criminal is working with the terrorists because they’re paying him good money for assistance with money laundering, document forging, smuggling, etc.) Maybe you get pulled over at a border crossing, and the authorities err on the side of caution and send you off to a secret prison where you’re beaten and malnourished. Eventually they realize that you are who you claim to be. (It doesn’t help, of course, that you post messages on a forum where people criticize the government.)

    They release you, and when you complain about the six months of abuse in a secret prison they say that it’s really no big deal, you were released so what do you have to complain about?

    Of course, your family has no idea what happened to you. They think that you either died or went crazy and ran away. Your job is gone. Your spouse, having to survive without your income, has sold the house and car, or else borrowed a bunch of money that you will have to help pay back (after you find a new job, of course).

    And all of this could have been avoided if you had been able to make a phone call to your lawyer and ask him to collect some identifying documents and show them to the cops. Due process has its purposes.

    Finally, if you are going to insist that this is the price we have to pay in an era of terrorists with WMD (never mind that the deadliest terrorist attack in US history was conducted with knives, not nukes), well, the prison cell that you occupied could have been used to house a real terrorist. The guy who was torturing…um, I mean, aggressively interrogating you, is a guy who could have been torturing…um, well, whatever, a real terrorist.

    You damn looter: You sucked up valuable government resources!

  31. But Thoreau, if we bother to ensure that people like Khaled el Masri are actually guilty before we imprison and mistreat them, this will. . . uh. . . well, according to some people on this thread this will lead to a police state with even GREATER loss of civil liberties. So, to prevent our country from becoming more of a pesthole in the future, we must allow the military and CIA to kidnap and torture and imprison innocent people.

    Besides, the people arguing for expanded police powers have nice, non-Arabic-sounding names, and probably never considered the possibility that if the government gets all these nifty new powers, the government will not for long be content to limit its abuse exclusively to Arabs and Muslims.

  32. “An act of violence becomes a military act when its perpetrators seeks a political benefit instead of an economic or personal one.”

    Really. Treason is pretty much always committed for political purposes. So I guess treason trials should always be held before military tribunals.

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