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Padilla: The Civilian Court System Somehow Managed to Handle Him

Brian Doherty | January 22, 2008, 7:51pm

The judge in Jose Padilla's trial, according to the New York Times account of his sentencing "questioned the range and impact of the conspiracy, saying that there was no evidence linking the men to specific acts of terrorism anywhere or that their actions had resulted in death or injury to anyone."

He was nonetheless sentenced to 17 years and four months. He even got time served for his three and 1/2 years in a South Carolina military brig, where he was subject to "prolonged isolation and intensive interrogations in conditions that the judge called “harsh.”"

This result is seen as a defeat for federal prosecutors, who wanted life (and who long ago gave up on their first reason for arresting him, a supposed plan to set off a "dirty bomb" in the U.S. of A.)

Me from 9/11/06 on the generally dubious record of post-9/11 terror trials.

Jacob Sullum neatly sums up most of the disturbing elements of the story of Padilla's arrest, initial charges, military imprisonment, and trial back in August.

Matt Welch noted the disturbing levels of secrecy and misdirection in the way the White House and DOJ handled the Padilla case back in November 2005.

Harvey Silverglate from Jan. 2005 on the Supreme Court's record on "enemy combatants."

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Comments to "Padilla: The Civilian Court System Somehow Managed to Handle Him":

MLK | January 22, 2008, 8:17pm | #

and who long ago gave up on their first reason for arresting him, a supposed plan to set off a "dirty bomb" in the U.S. of A.
-----

they dropped it because they were forced to try this in Civilian Court, which is insane in and of itself since the man was dedicated to the destruction of the nation, not a common criminal.

to try the Dirty Bomb case in civilian court is a no-go, because it gives up our intel sources to the terrorist plotting against us.

paging Common Sense, are you there???

joe | January 22, 2008, 8:49pm | #

Exactly the same intel sources were used to gather the evidence that was used in this trial.

So, no, what you're saying is far more "common" than "sense."

Lou Barlow | January 22, 2008, 8:51pm | #

So you think this Padilla is a mere man, easily managed by your puny human civil court system? Your prisons of paper cannot hold this firey knight of god! Your walls will burst into flame and Padilla's secret legions will rise up and drag all your cities into a smokey hole in the earth and your earthly kings will tremble in their remote castles in the clouds.

Hulk will smash you unless you preemptvely smash hulk!

tarran | January 22, 2008, 8:53pm | #

Having grown up in the 80's, I remember how people were wetting their pants over the Japanese. The japanese were these superhuman fighters/schemers who were going to take over everything.

The movie "The Punisher" starring Dolph Lundrgren captured the insanity perfectly. The Japanese were all ruthless fighters who could kill as easily as an American swatted a fly.

Now, many Americans, like MLK above are peeing their pants the same way about the superhuman terrorists. But when you dig into Al Queda, look at what they are actually capable of, it's far less than the hype. The guys freaking out about Padilla are confusing some bad 80's movie with reality.

The notion that the U.S. government actually cares about protecting intelligence sources is contradicted by their actual behavior.

The faction lacking common sense are not the guys pointing out that the U.S. government's officials are behaving like the keystone cops.

Jaybird | January 22, 2008, 8:58pm | #

Way back in the heady days of 2002 and 2003, I argued the Padilla case with some of my ANSWER-inclinded friends. They were arguing to me that this was a violation of habeus corpus and Padilla should be charged rather than just detained without charges.

They weren't arguing "HE NEEDS TO GO FREE!" but "He needs to be charged and have access to counsel or he needs to go free."

I argued that John Ashcroft said that Padilla was part of a group that was planning a dirty bomb and there was a lot of stuff that needed to be done to protect the intelligence and information that Padilla had so that his contacts and other cell members could be stopped if necessary.

They argued that Padilla was an American Citizen and had rights.

I argued that they were naive and we were talking about a dirty bomb and, if you thought that the Police State was bad now, imagine what would happen in response to a dirty bomb going off in a crowded place. This was a small price to pay.

And, eventually, Padilla was charged.

And, eventually, he was found guilty.

And it had nothing to do with the charges that I used to defend his detention without having been charged.

And I have a bad taste in my mouth.

MLK's post reminded me of that old position of mine, that's all.

Cesar | January 22, 2008, 9:15pm | #

Tarran I agree, I think Al Qaeda shot their wad on 9/11. The bastards got lucky because we were completely asleep at the wheel.

Of course, I still hope we capture bin Laden, Al Zawahiri and that traitor Ghadan and parade them in chains down Pennsylvania Avenue, but I don't think we have to worry about major terrorist attacks from them.

Kolohe | January 22, 2008, 10:03pm | #

and i agree with both Jaybird and Cesar with one caveat:

"asleep at the switch"

Well maybe. I am little more charitable, in that this is a result of the proverbial million monkeys not giving us a literary work, but rather death and destruction.

A free society with inevitably have psychos who do damage. The only way to prevent it is to not have a free society.

Dave W. | January 22, 2008, 10:05pm | #

I read the news stories, but I still can't figure out exactly what Padilla did. He probably did something, but darned if I know what. Talked on the telephone with people who didn't like America? Visited with people who didn't like America? Either court didn't do its job here or the media didn't. At least with the Moussaoui case we got some of the facts.

Someone Who Doesn't Want to Lose His Job | January 22, 2008, 10:41pm | #

A free society [will] inevitably have psychos who do damage. The only way to prevent it is to not have a free society.

Even that wouldn't prevent it...the psychos causing damage would just be wearing uniforms instead.

The Ron Paul Trolling Report | January 22, 2008, 10:57pm | #

MLK upthread is a gay Pedophile.

Your Good Buddy Johnny Clarke | January 22, 2008, 11:06pm | #

The government's approach to Padilla made me very angry. Sure, he was scum. But he was American scum, and the president doesn't get to wave his little magic wand and turn him into a non-citizen. You want to toss foreign fighters into a black hole, well, that's one thing, but an American citizen has Constitutional rights, and to argue otherwise is to destroy the very foundation of this country.
I always find it odd that the most vehemently "patriotic" folks are the ones actively working against what we supposedly stand for.

crimethink | January 22, 2008, 11:28pm | #

Dave W,

IIRC, one of our valuable sources of intelligence (possibly strapped to a waterboard) said Padilla was working on a uranium enrichment technique that involved throwing some U in a bucket and spinning it around over his head, really fast.

mlk | January 22, 2008, 11:31pm | #

One of the key points against Padilla all along is that he was fingered by captured al Qaeda big Abu Zubaydah, and turned up in Chicago where Zubaydah said he would on his mission to dirty bomb and blow up Chicago area apartment buildings. That’s circumstantial, but surely damning. If Padilla is innocent, how did Abu Z know where he’d be and when he’d be there?

convicted Al-Qaeda terrorist, now free to radicalize other prisoners in prison for the next 17 years.

MLK | January 22, 2008, 11:34pm | #

"American citizen has Constitutional rights"

and they forfeit them once they commit Treason and vow to destroy the country. Its an Act of War...

pendragon | January 22, 2008, 11:37pm | #

MLK - you usually have to be convicted of something to forfeit rights. They just don't get to wave that "magic wand" and you lose them. Or else we will all lose them.

A-Rod | January 22, 2008, 11:40pm | #

Treason is a crime in the United States Code. The Rosenbergs were convicted of treason - in a federal court, before a judge, using the laws of evidence and all of the standard legal and administrative processes that accompany any other federal prosecution, and enjoyed the full spectrum of rights available to any other defendants in America.

So, no, that doesn't get you there, either.

MLK | January 22, 2008, 11:51pm | #

you know how George Washington caught Benedict Arnold and the other British spies and traitors?

he intercepted Mail to those he suspsected, read it, placed back into mail undetected. the common sense thing to do.

MLK | January 22, 2008, 11:51pm | #

8 USC Sec. 1481 01/03/05

TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER III - NATIONALITY AND NATURALIZATION
Part III - Loss of Nationality

Sec. 1481. Loss of nationality by native-born or naturalized
citizen; voluntary action; burden of proof; presumptions

-STATUTE-

(a) A person who is a national of the United States whether by
birth or naturalization, shall lose his nationality by voluntarily
performing any of the following acts with the intention of
relinquishing United States nationality -

(1) obtaining naturalization in a foreign state upon his own
application or upon an application filed by a duly authorized
agent, after having attained the age of eighteen years; or

(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or a political
subdivision thereof, after having attained the age of eighteen
years; or

(3) entering, or serving in, the armed forces of a foreign
state if (A) such armed forces are engaged in hostilities against
the United States, or (B) such persons serve as a commissioned or
non-commissioned officer; or

(4)(A) accepting, serving in, or performing the duties of any
office, post, or employment under the government of a foreign
state or a political subdivision thereof, after attaining the age
of eighteen years if he has or acquires the nationality of such
foreign state; or (B) accepting, serving in, or performing the
duties of any office, post, or employment under the government of
a foreign state or a political subdivision thereof, after
attaining the age of eighteen years for which office, post, or
employment an oath, affirmation, or declaration of allegiance is
required; or

(5) making a formal renunciation of nationality before a
diplomatic or consular officer of the United States in a foreign
state, in such form as may be prescribed by the Secretary of
State; or

(6) making in the United States a formal written renunciation
of nationality in such form as may be prescribed by, and before
such officer as may be designated by, the Attorney General,
whenever the United States shall be in a state of war and the
Attorney General shall approve such renunciation as not contrary
to the interests of national defense; or

(7) committing any act of treason against, or attempting by
force to overthrow, or bearing arms against, the United States,
violating or conspiring to violate any of the provisions of
section 2383 of title 18, or willfully performing any act in
violation of section 2385 of title 18, or violating section 2384
of title 18 by engaging in a conspiracy to overthrow, put down,
or to destroy by force the Government of the United States, or to
levy war against them, if and when he is convicted thereof by a
court martial or by a court of competent jurisdiction.

(b) Whenever the loss of United States nationality is put in
issue in any action or proceeding commenced on or after September
26, 1961 under, or by virtue of, the provisions of this chapter or
any other Act, the burden shall be upon the person or party
claiming that such loss occurred, to establish such claim by a
preponderance of the evidence. Any person who commits or performs,
or who has committed or performed, any act of expatriation under
the provisions of this chapter or any other Act shall be presumed
to have done so voluntarily, but such presumption may be rebutted
upon a showing, by a preponderance of the evidence, that the act or
acts committed or performed were not done voluntarily.

-SOURCE-
(June 27, 1952, ch. 477, title III, ch. 3, Sec. 349, 66 Stat. 267;
Sept. 3, 1954, ch. 1256, Sec. 2, 68 Stat. 1146; Pub. L. 87-301,
Sec. 19, Sept. 26, 1961, 75 Stat. 656; Pub. L. 94-412, title V,
Sec. 501(a), Sept. 14, 1976, 90 Stat. 1258; Pub. L. 95-432, Secs.
2, 4, Oct. 10, 1978, 92 Stat. 1046; Pub. L. 97-116, Sec. 18(k)(2),
(q), Dec. 29, 1981, 95 Stat. 1620, 1621; Pub. L. 99-653, Secs. 18,
19, Nov. 14, 1986, 100 Stat. 3658; Pub. L. 100-525, Secs. 8(m),
(n), 9(hh), Oct. 24, 1988, 102 Stat. 2618, 2622.)

MLK | January 22, 2008, 11:54pm | #

key portin of above statute:

(7) committing any act of treason against, or attempting by
force to overthrow, or bearing arms against, the United States,
violating or conspiring to violate any of the provisions of
section 2383 of title 18, or willfully performing any act in
violation of section 2385 of title 18, or violating section 2384
of title 18 by engaging in a conspiracy to overthrow, put down,
or to destroy by force the Government of the United States, or to
levy war against them, if and when he is convicted thereof by a
court martial or by a court of competent jurisdiction.

LibertyPlease | January 23, 2008, 1:15am | #

Anyone see this travesty in the WSJ this weekend? By John Yoo about Jose Padilla's $1.00 lawsuit to get his treatment declared unconstitutional?:

Accourding to John Yoo:
Padilla's complaints mirror the left's campaign against the war.
Seems the petty criminal Padilla is more of a Patriot than this former Bush Administration Official..... (I'm not sticking up for Padilla, just pointing out his superiority to John Yoo)

Ben P. | January 23, 2008, 7:09am | #

MLK, do you lose the ability to read after a few dozen words?

>or to levy war against them, if and when he is
>convicted thereof by a court martial or by a court of
>competent jurisdiction.

...or do you not see the part about the conviction being necessary for someone to be stripped of that citizenship? I mean, Great Freepin' Jeebus, man, you went out of your way to quote that entire paragraph *a second time*,and it's the very last line in it.

Dave W. | January 23, 2008, 7:24am | #

al Qaeda big Abu Zubaydah, and turned up in Chicago where Zubaydah said he would on his mission to dirty bomb and blow up Chicago area apartment buildings. That’s circumstantial, but surely damning. If Padilla is innocent, how did Abu Z know where he’d be and when he’d be there?

Probably because Padilla told somebody who told Abu Zubaydah. I mean maybe Padilla was on a mission to spread Islam, but not violence, just the religious part, and Abu Zubayah decided to give him up so as not to disrupt the genuine sleeper cell. This is why you traditionally get to face your accuser in court.

Now, I have a feeling that they have something better on Padilla than this, but usually in a treason or terrorism trial you get to know what it is. I mean, I know what Benedict Arnold did. I know what the Rosenbergs did. I still have no idea what Jose Padilla did. All I know is that he listened to some speeches by some bad guys and talked on the telephone with some bad guys. There has got to be more to the real story.

MLK | January 23, 2008, 10:30am | #

"Seems the petty criminal Padilla is more of a Patriot "

uh, Padilla is a convicted Al-Qaeda terrorist on all 5 counts! a "patriot", you are suicidally nuts.

and there's a decent chance that Padilla was "John Doe #3" in the Ok. City bombing, plenty out there to read on that. Someone was and Padilla favors the sketch of him alot, but the Clinton Justice dept. stopped that investigation a long time ago.

Scooby | January 23, 2008, 10:38am | #

A "decent chance that Padilla was 'John Doe #3'"?Was he also on the grassy knoll? Is there no end to the trouble this piss ant has caused in the past?

Someone Who Doesn't Want to Lose His Job | January 23, 2008, 10:52am | #

MLK:

Seems the petty criminal Padilla is more of a Patriot than this former Bush Administration Official

changed to:

"Seems the petty criminal Padilla is more of a Patriot "

Nice work. :-/

de stijl | January 23, 2008, 11:19am | #

MLK - troll or true believer? I'm leaning towards true believer.

gary krasner | January 23, 2008, 12:22pm | #

You provided a pretty slanted summary of the Padilla case.

First, the Administration had ample legal precedent in detaining enemy combattants, and to deny them access to Article 3 courts. The Supreme Court broke with that precedent based solely upon pressure from public opinion.

Nevertheless, Padilla WOULD HAVE been detained at Gitmo right now had he been apprehended before he made it back to US soil. And he WOULD HAVE been before a FISA judge soon afterward for his due process. The Government WOULD HAVE had to demonstrate to the FISA judge why Padilla earned combattant status. BUT, Padilla's lawyers challenged the jurisdiction of FISA, and petitioned the courts to move Padilla's case to a civilian court.

Thus, Padilla was held without charges for those 3.5 yrs while the jurisdictional litigation dragged on. Another little tidbit you failed to explain.

And you also failed to explain that because the Supreme Court forced the Government to try Padilla in an Article 3 court, the Government could not try Padilla on the original war crimes charges. Doing so would have permitted Padilla discovery rights to government classified sources and methods.

So Padilla plotted to kill untold thousands or millions of Americans. But the Supreme Court and people like you preferred to have the world love us, than punish this war criminal. After all, how we feel about ourselves is preeminent, yes?

joe | January 23, 2008, 1:41pm | #

You know that Republican-stacked Supreme Court - always bending over backwards in the face of the pressure the public is exerting to have terror suspects' rights respected.

That's a really terriffic argument right there.

So Padilla plotted to kill untold thousands or millions of Americans.

Well, no, not even the prosecution made this claim.

But hey, except for those four glaring misrepresentation of the facts, that's a very impressive argument.

tarran | January 23, 2008, 3:33pm | #

Plotted to kill millions of Americans?

Do these morons not understand how a dirty bomb works?

It's a conventional explosive laced with radioactive material.

Set one of those off, and over the next twenty years perhaps 5 thousand more people will die of cancer than otherwise would.

This smaller than the number of extra people who die each year from lack of good medical care whenever the FDA makes their approval regulations more restrictive.

And yes, I am sure that the Supreme court bends to public pressure. Look how they supported they caved in the face of all that public pressure to let states legalize marijuana.

As I said earlier, all these guys who think Padilla deserved what he got are people who think life is like a low-budget 80's action flick.

de stijl | January 23, 2008, 4:07pm | #

As I said earlier, all these guys who think Padilla deserved what he got are people who think life is like a low-budget 80's action flick.

Worse. It's more of a second hand interpretation of 80's action movies a la McBain vs. Mendoza and when Homer says, "It means he gets results, you stupid Chief!" they nod approvingly and unironically.

TrickyVic | January 23, 2008, 4:13pm | #

Wow, the people that are willing to spit on the Constitution while claiming to support it.

gary krasner | January 23, 2008, 6:46pm | #

Joe, and assorted dumdums,

The wall st jrnal wrote:

The AP finally gets around to telling us in the fifth paragraph:

*** QUOTE ***Padilla, 37, and co-defendants Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46, were convicted in August of terrorism conspiracy and material support after a three-month trial. Jurors concluded they were part of a support cell that sent recruits, money and supplies to Islamic extremists worldwide, including al-Qaida.
*** END QUOTE ***

Oh, is that all? Well, no big whoop. Also, what does that first paragraph mean saying these charges were "unrelated"? Al Qaeda has nothing to do with al Qaeda?

And yes, Supreme Court justices who voted for Padilla provided the only rationale we know: They expressed concern over the length of the war, and the idea of having combattants detained indefinitely. Thus, they acted in "ultra vires" of the Constitution, as the Constitution does not stipulate that combattants can obtain access to Article 3 courts after a period of time. WHILE THE WAR IS STILL GOING ON.


FINALLY, Tarran wrote:

QUOTE
Set one of those off, and over the next twenty years perhaps 5 thousand more people will die of cancer than otherwise would. This smaller than the number of extra people who die each year from lack of good medical care whenever the FDA makes their approval regulations more restrictive.
UNQUOTE

this answer belies quite a bit about your leftist mentality. First, a potent amount of radioactive material in lower manhattan during rush hour would yield hundreds of thousands of injured and render the area uninhabitable for decades. The clean up would be far more than cleaning the 911 aftermath. Second, why would any sane person quibble over the amount of injured over a thousand?! And third, we as a society distinguish acts of God, acts of carelessness, and chance, FROM acting with intent to kill---whether it's a homocide of one person, or or an act of war that kills hundreds.

I'd explain why this is, but then you'd need a moral conscience to grasp it.

TrickyVic | January 24, 2008, 11:12pm | #

Gary, you seem to have missed the part in the Constitution that defines when Habeas Corpus can be suspended and by whom. Bush pretty much knew SCOTUS would uphold the Constitution.

The President does not have the authority to remove Habeas from a citizen.