Civil Liberties

Where Have You Gone, Jose Padilla?

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The figure at arguably the most-contested civil rights case to emerge from the responses to 9/11–U.S. citizen Jose Padilla, who has been in federal custody as an "enemy combatant" for 3 and a half years–is going to trial.

Fingered publicly by then Attorney General John Ashcroft as a "dirty bomber," the AP says that Padilla and two others are now "accused of being part of a support cell that funneled fighters, money and supplies to Islamic extremists in Afghanistan, Chechnya, Bosnia, Tajikistan and elsewhere around the world."

More recently, Padilla's lawyers argued their client couldn't stand trial due to mental illness brought on by torture while in captivity.

More here.

Reason's Jacob Sullum contemplated the lawlessness of the way in which Padilla has been held here. And Harvey Silverglate took a long look at the Supreme Court's sketchy take on the the civil liberties of enemy combatants here.

NEXT: McCain Digs a Deeper Hole

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  1. hear this?
    .
    .
    .
    .
    .
    world’s smallest violin.

  2. If Bush says he’s a Bad Guy, that’s good enough for me. I’m pretty sure that the Bill of Rights was never intended to be applied to criminal suspects.

  3. this man is not a criminal suspect. there is a BIG difference in enemy combatants and criminals. Sorry max is to dense to understand that.

  4. I like to think Max is being sarcastic.

  5. John D

    A citizen ARRESTED at an airport in the course of normal law enforcement operations is a criminal suspect.

    To be an “enemy combatant” one would have had to be captured in some sort of combat situation.

  6. Audrey

    John D recognized Max’s sarcasm. He just didn’t appreciate it.

  7. But then, maybe if the terrorists hate us for our freedoms we can appease them by abandoning them all.

    Good plan.

  8. U.S. citizen Jose Padilla, who has been in federal custody as an “enemy combatant” for 3 and a half years–is going to trial.

    Actually, his detention was announced in spring of 2002.

    If they really have good evidence against this guy, they could have already tried and convicted him by now, and probably even cleared the first appeal. I know the wheels of justice grind slowly, but five years is still a good chunk of time.

    Instead, they’ve spent this time concocting dubious legal theories and trying to set dangerous precedents, while changing the nature of the accusations.

    He may very well be a dangerous bad guy who deserves to go to prison, but there’s a right way to do it and a wrong way to do it. This is the wrong way, and it’s terrifying that anybody could support what’s been done here. They aren’t interested in stopping a terrorist, they’re interested in setting precedents for unchecked power.

  9. This is the wrong way, and it’s terrifying that anybody could support what’s been done here. They aren’t interested in stopping a terrorist, they’re interested in setting precedents for unchecked power.

    Excellent, Dr. T! Well spake!

  10. rumour has it that the evidence against jose padilla includes pictures of him putting KETCHUP on a hot dog.

    is this the kind of man we want walking the streets?

    hey highnumber. you know how the lake looks today. i took a picture of it for you the other day.

    hier

  11. …and it’s terrifying that anybody could support what’s been done here.

    Boo effing Hoo. What’s terrifying are two planes crashing into the WTC.

    Its so convenient for our government to be the source of all evil. We don’t have to look so hard when we want to find it.

  12. awesome, Herr Crane! Awesome!

    (apparently Highnumber didn’t like the video selection, either)

  13. thoreau,

    …they’re interested in setting precedents for unchecked power.

    Or they could view this as the best way to defend the USA. Then again maybe I’m naive. I do know that I can’t see into the “souls” of others, or I can at best do so as through a glass darkly.

  14. d’oh. posted too soon. “eb” does a good job in deflecting the issue.

    Funny. I thought the conservative stereotype of liberalism is that “l” is “emotional”. Sounds like pure pathos there.

    “Thanks”, Mr. Tough Guy. “Thanks”.

    Hey Crane! I found a pic of “eb”

    hier

  15. he’s a JUKE BOX HERO
    WITH STARS IN HIS EYES

  16. ach! hier

    (“eb” is the first, um, “male” on camera hier, btw)

  17. and the DEMAND KURV proponents are the “fiscal responsibility” fellow hier

  18. i mean hier

  19. I believe anybody in the custody of the American government should be afforded the protections of the Constitution. Further, I believe that whatever distinction there might be between a “POW” and an “enemy combatant” becomes irrelevant once the specific individual has been transferred to a detention facility.

    Naivete is believing the government has the ability to reduce a negligible risk to zero.

    And in other news- Boondoggling as an Olympic event is coming to a Windy City near you.

  20. “Boo effing Hoo. What’s terrifying are two planes crashing into the WTC. ”

    A government out of control is far more frightening that two planes crashing into the WTC.

    You know that old expression:

    “Freedom isn’t Free”?

    Sometimes that means innocent citizens die in terrorist attacks. On the whole it’s far more important to guarantee the freedoms of citizens than to (futilely attempt to) guarantee their safety.

  21. I agree with thoreau in that I have no doubt that some are seeking unchecked power here. But this does not necessarily mean that those seeking the unchecked power do not seriously believe that this power is needed to counter the threat from terrorism. In other words they may not necessarily be seeking power for power’s sake (which is how I originally read the comment).

    Grotius is also right that some “view this as the best way to defend the USA.” But that does not mean they are not seeking unchecked power to do it.

    But no matter what anyone’s motives here, some dangerous precedents are getting set.

  22. Isaac Bertram,

    I think one can dump the “motives talk” and make a far strong argument in the process.

  23. So, just so we’re clear, it’s not OK on a libertarian site to assume the worst when talking about policy-makers?

  24. So, just so we’re clear, it’s not OK on a libertarian site to assume the worst when talking about policy-makers?

    Depends on whether they are in the military or not.

  25. But then, maybe if the terrorists hate us for our freedoms we can appease them by abandoning them all.

    Yes, we need to beat the terrorists to their finish line.

  26. thoreau,

    You can assume the worst I suppose, but what is the point of that exactly?

  27. I believe anybody in the custody of the American government should be afforded the protections of the Constitution.

    You mean we have to put enemy soldiers captured in a bona fide war on trial, one by one, or release them?

    Further, I believe that whatever distinction there might be between a “POW” and an “enemy combatant” becomes irrelevant once the specific individual has been transferred to a detention facility.

    You mean we should ignore the legal distinctions created by the Geneva Conventions that are intended to protect civilians by making soldiers clearly identifiable and impose some minimalist “rules of war”?

  28. thoreau,

    Indeed, couldn’t one assume “the worst” without inherently subjective (especially at this distance) “motives talk?” The “worst” being – in my mind – that they are wrong.

  29. “””this man is not a criminal suspect. there is a BIG difference in enemy combatants and criminals. Sorry max is to dense to understand that.””””

    Bush quietly dropped the “enemy combatant” status when Padilla was moved to federal court. Therefore the differnece between combatants and criminals do not apply any more. In fact he IS now a criminal suspect.

    John D’s original post is an example of how hard it’s going to be to get a jury. The stigma is thick.

    “””Sorry max is to dense to understand that.”””

    Max is not the dense one here.

  30. R.C. Dean,

    The Geneva Conventions don’t trump the U.S. Constitution. They are both sources of law on this issue. Furthermore, when it comes to American citizens detained in the U.S. it is hard to get around the language in Ex parte Milligan.

  31. R C Dean-

    Let’s start with habeas corpus and cruel and unusual punishment (which, I’m reasonably certain, includes torture), and go from there. As for POWs, is there, or is there not, a specific legal procedure for processing them into custody?

    Or do you honestly believe the government can be trusted to disappear only the deserving?

  32. You mean we have to put enemy soldiers captured in a bona fide war on trial, one by one, or release them?

    Do you mean we have to allow the government to grab a guy off the street in this damned country and mistreat him so much that, almost five years later, as they bring the guy into the courtroom with a damned blindfold on, he literally cannot keep still for his twitching?

    You know, I can buy the lower-case-name trolls oozing out of the woodwork to drop a message and run, but I can’t buy some guy who keeps claiming he’s a libertarian while parroting the Red Team line about Padilla. What’s up with that, RC?

  33. lower-case-name trolls oozing out of the woodwork to drop a message and run

    Hey!

    🙂

  34. Sorry, was thinking “edna” and “eb”!

  35. Jeepers creepers!
    Is a guy expected to be on the internet all the time? Can’t I have some time off?
    Beautiful sunrise. Good work, Mr Crane.

    Thanks for New Wave Sunday. I have yet to watch more than a few of Sunday’s vids. I have enjoyed the Feelies and I have wondered how “Sun City” can be so great and so cringe inducing all at once.

  36. eric, if you search my past posts, you will find that the lower case stuff is a result of a tragic accident that cost me my pinkies. i am protected against such insults as yours by the ada. please have your attorney contact my attorney. let the billing begin!

  37. All right, how about this:

    A guy captured on the battlefield is to be treated as a POW under Geneva, unless found guilty of crimes under a UCMJ trial. The only thing a lower standard of review is going to accomplish is more false convictions. If someone is found guilty, he loses his Geneva protections.

    A guy arrested off the battlefield is a criminal suspect, and gets a civilian trial. If he is convicted, the government can put him before a court martial, and if found guilty there, he goes into military custody and loses his Geneva protections.

    I’m even willing to see the definition of “battlefiend” stretched a little bit. If someone is actively engaged in hostilities – not thinking about them, not talking about them, not even collecting money for them, but actively engaged in them – “behind the lines,” meaning in our neighborhoods or airports or whatever – he can be sent directly in front of a court martial. But he retains habeas corpus, and can challenge his designation as a POW in a civilian court.

  38. i would agree with you, joe, assuming the individual qualifies under the signed geneva conventions, especially the “in uniform” part.

  39. edna,

    Our military doesn’t want their soldiers deciding for themselves, in the field, whether a captive enemy qualifies for Geneva or not. They want our troops to assume that they do, and treat them as such. The decision to deny them this status can only be made – according to both our law and Geneva intself – by a “regularly-constituted tribunal.”

  40. eric, if you search my past posts, you will find that the lower case stuff is a result of a tragic accident that cost me my pinkies. i am protected against such insults as yours by the ada. please have your attorney contact my attorney. let the billing begin!

    Nah, just gonna have you dragged off to Gitmo. You like sleep-dep, right?

  41. Funny thing. We caught Nazi spies and saboteurs on US soil during WW2, and those guys weren’t covered by the Geneva Conventions.

    We didn’t disappear and torture them for years, though. We didn’t blindfold them at hearings on the lame excuse that they’d blink crucial secret messages. We held them, tried them in a fair court of law, and shot the ones we convicted – all while fighting a huge war against an enemy that actually was an existential threat.

  42. “regularly constituted tribunal” covers a lot of ground, wouldn’t you agree? three lieutenants in a nearby barracks? i mean, it’s pretty easy to see if someone is in uniform or not, it doesn’t take high powered attorneys.

    eric, i’m sort a a waterboarding type, having lived in california the past 20 years or so.

  43. But this does not necessarily mean that those seeking the unchecked power do not seriously believe that this power is needed to counter the threat from terrorism

    And the Grand Inquisitor honestly believed the torture chambers were necessary to protect Christendom from Jews, witches, Satan or whatever the fuck they were afraid of that week. The sincerity of their belief matters not at all–what matters is the outcome.

    If the only way to save the USA is to burn the Constitution then the country’s not worth saving. Take away our alleged commitment to the ideals of justice and human rights and what’s left? A big chunk of land no better or worse than many others on this planet.

  44. eric, i’m sort a a waterboarding type, having lived in california the past 20 years or so.

    I’m sure the attentive stuff would get to that at some point.

  45. A guy captured on the battlefield is to be treated as a POW under Geneva, unless found guilty of crimes under a UCMJ trial or he is wearing civilian clothes or otherwise not entitled to POW status under Geneva.

    Whadaya think, joe? If my addition is unreasonable, doesn’t that make Geneva unreasonable?

    A guy arrested off the battlefield is a criminal suspect, and gets a civilian trial.

    In fourth gen warfare, where’s the battlefield?

    If someone is actively engaged in hostilities – not thinking about them, not talking about them, not even collecting money for them, but actively engaged in them – “behind the lines,”

    In fourth gen warfare, what counts as “actively engaged”? Running a safehouse? Raising money? Laundering money? Manufacturing false IDs? Buying supplies (like a car to be used to carry a bomb? Buying/transferring weapons?

  46. Attentive staff. Ah, never mind…

  47. RC, if I’m reading your all-italics post rightly, you’re pretty much arguing that the government needs to be able to detain and do whatever the hell it wants to anyone it wants.

    So, I’m guessing your answer is that you just don’t call yourself a libertarian anymore.

  48. High#:

    you said it about sun city. Mrs. Moose burst into the room, “what the hell is this??”

    Figured it was a goodie to send out!

    “you’re pretty much arguing that the government needs to be able to detain and do whatever the hell it wants to anyone it wants”

    that appears to be the strategy if the individuals in question are in the WoT.

    *slaps forehead…..

  49. Eric the .5b,

    “We caught Nazi spies and saboteurs on US soil during WW2, and those guys weren’t covered by the Geneva Conventions.”

    Sure they were. As laid out in the Geneva Conventions, we had to try them before a military court – one that applied the standards used to try our own troops when they are accused of crimes against the laws and customs of war – and find them guilty.

    “Covered by the Geneva Conventions” doesn’t just mean “treated according to the Convention’s rules for POWs.”

    edna,

    “”regularly constituted tribunal” covers a lot of ground, wouldn’t you agree?” It’s broad, but not as much so as you make it out to be. The ad hoc “trial” you describe would not count – we don’t regularly have three lieutenants proclaiming peoplel criminals in a barracks. The phrase means that they have to be tried in front of an actual court of some sort according to the rules that court normally uses, not some thrown-together kangaroo court that applies some slap-dash standards of evidence and guilt.

  50. RC,

    The ital tags just aren’t worth it, dude. 😉

    “A guy captured on the battlefield is to be treated as a POW under Geneva, unless found guilty of crimes under a UCMJ trial or he is wearing civilian clothes or otherwise not entitled to POW status under Geneva.”

    I want somebody besides the soldier who caught them, after losing two of his closest buddies, to decide whether they were actually out of uniform or otherwise not entitled to that status. If captured on the battlefield operating like spies, they should treated like POWs until they go in front of a tribunal.

    “In fourth gen warfare, where’s the battlefield?…In fourth gen warfare, what counts as “actively engaged”? Running a safehouse? Raising money? Laundering money? Manufacturing false IDs? Buying supplies (like a car to be used to carry a bomb? Buying/transferring weapons?”

    Tough questions. Important questions. I say we turn it around; in the modern world, where are we allowed to live as free citizens, enjoying the civil and human rights laid out in the Constitution? I say, our schools and town halls and neighborhoods and living rooms should NOT be treated as battlefieds by the government – meaning, the government should not have the enhanced authority over life, death, freedom, and bondage that it has on a battlefield, but should be limited to the authority it has under civil law – unless there is an imminent threat in that particular place and time.

    I know it’s a dangerous world, RC. I think we choose to live as free men anyway.

  51. How about this, being the FBI is not a military component, all people arrested by the FBI is tried in civilian court, period.

    The military should not be arresting anyone, period. It’s not their job to do law enforcement. If you are captured by the military on a battlefield all current conventions on seisures during battle applies. We don’t need to rewrite the GC.

    Battlefield should be defined as a place where the battle is occuring. There is no “battle” in the US. Some say that’s why we went to Iraq, to protect ourselves from becoming battlefield. Three attacks in the last 15 years or so coupled with the possibility of unknown future attacks on some unknown US location does not constitute “battlefield” by any reasonable definition of the word.

    One of the charges against Padilla is that he was going to harm other people in other lands. Isn’t that outside of our jursidiction? If he was going to harm Germans in Germany, isn’t that Germany’s problem from a legal point of view? SCOTUS dismissed his last trial over a jurisdictional issue, that was between what, New York and South Carolina.

  52. Wow, funny pictures and being called a troll. How can I ever debate that.

    I’ve been reading and posting at this site for years. I don’t know how I qualify as a troll but then I’m not as engaged in those issues like others.

    I guess for some people, disagreeing with the party line equals being a troll. Gives a new meaning to “Reason”.

  53. *takes a drink!*

  54. TrickyVic,

    “Battlefield should be defined as a place where the battle is occuring. There is no “battle” in the US. Some say that’s why we went to Iraq, to protect ourselves from becoming battlefield. Three attacks in the last 15 years or so coupled with the possibility of unknown future attacks on some unknown US location does not constitute “battlefield” by any reasonable definition of the word.”

    On September 11, wasn’t Lower Manhatten itself a battlefield?

  55. Instead of thinking about this in terms of “What could we consider the military’s turf?” we should be thinking in terms of “When wouldn’t the Article III courts be capable of handling the situation?”

    The only situation I can think of is massive disruption of law and order that renders it impossible for police and courts to function, or the very large scale captures that can occur in all-out war. I’d also contemplate captures overseas in areas where the military is operating, but even there we need to be careful. First, there still needs to be some process beyond “The Decider Decides”. As I understand it, enemies captured out of uniform or otherwise violating the rules of war are to be tried by the same standards that our military courts would apply to US soldiers accused of war crimes. (Correct me if I’m wrong.)

    Second, while it is often argued that our traditional procedures cannot be applied to people operating in lawless areas, where local officials are some mixture of corrupt, complicit, and incompetent, keep in mind that we frequently use regular Article III courts to try drug suspects captured overseas. Drug lords frequently serve as de facto governments in their locales, paying off the ostensible authorities, and intimidating anybody who would think of opposing them. Yet we manage to try them.

    Now, I’m no fan of the drug war, but it does show that our judges and prosecutors can handle the challenge of trying and convicting somebody who operated in a lawless area overseas.

  56. “””On September 11, wasn’t Lower Manhatten itself a battlefield?”””

    For Manhattan, 2 attacks, 1 one day. Then the attacks on Manhattan stopped. For that day, maybe you could say so. I don’t think a dozen or so operatives carrying out a single mission would automatically define the target area as a battlefield. I also believe a battlefield includes troops from both sides fighting. Our troops did not engage the enemy on 9/11 so thats a loopsided battle. I’ve never heard of a battlefield where only one side fought. Massacre? Yes. Battle? No. Maybe you could enlighten me on past battlefields where one side is absent?

    Besides if 9/11 is to be considered a “battlefield” than the citizens killed were simply collateral damage. Similarly to when we kill civilians on the battlefield. I do not agree with that.

    Afganistan and Iraq became battlefields, Manhattan is nothing like that.

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