August 16, 2007

Padilla guilty on all counts.

WaPo reports:
Jose Padilla... was convicted today by a federal jury in Miami along with two co-defendants of supporting al-Qaeda and other violent Muslim extremist groups....

They were found guilty on all three counts against them: conspiracy to murder, maim and kidnap as part of a terrorist campaign overseas, conspiracy to provide material support for terrorism and providing material support for terrorism....

In closing arguments, Assistant U.S. Attorney Brian Frazier told the jury of seven men and five women that Padilla "provided himself to al-Qaeda to murder, kidnap and maim."

Padilla's lawyers disputed that, arguing that he went overseas to study Islam and learn Arabic. "His intent was to study, not to murder," defense attorney Michael Caruso told the jury in his own closing argument.

52 comments:

NSC said...

Great win in the war on terror. And for Bush if you want to look at it through a partisan lens.

Unfortuantely the left is doing just that over at the DU, DailyKOS, HuffPo and other leftie blogs. I know you aren't supposed to say they are unpatriotic, but damn, they can't even cheer a law enforcement victory over terrorism when they say we should be concentrating on an law enforcement answer to terrorism (as opposed to military).

I do my best not to believe it, and I hate being a cynic, but damn if I don't think they want the terrorists to win.

Revenant said...

I wonder what the next step will be. Will the government ask that he be sent back to South Carolina for continued detention, or will he be allowed to live among the general population of a prison?

NSC said...

They wouldn't last a day in genpop. They will go to a Supermax for the rest of their lives. Good riddance.

Paul Brinkley said...

If he goes into general prison, I doubt he'd make it to December 5th alive.

The Drill SGT said...

I do my best not to believe it, and I hate being a cynic, but damn if I don't think they want the terrorists to win.

I think they have a high level of cognitive dissidence.

I think they want the current administration (and more generally for the "imperial Amerika") to lose in every forum against every opponent and at the same time don't consider what life would be like if the bad guys "win"

the hard left uses any angle to attack US power.

Global warming is one front. it attacks "soft power". By that, I'm not saying by any means that everybody that believes in GW is anti-US but it is an avenue of attack

The "Law enforcement" approach to terrorism is another, but then when you actually talk about arresting people, all the plots are portrayed as "government incited", the plots were not coherent, and the plotters just amateurs arrested for political value. Until a plot works, then the press and the left will point out that the administration is amateurish and needs to focus on the "law enforcement" approach to terrorism. a vicious circle.

rastajenk said...

Makes you wonder how they'll react if they ever get a Dem back in the White House and a domestic terrorism case gains a conviction. Or, it makes you wonder if that could even happen.

Paddy O. said...

What's more interesting is that you would blog about this instead of the Bush daughter White House wedding.

Trevor said...

"cognitive dissidence"? I'm guessing that's a typo.

As for using Padilla as a club to beat the left, most of the criticism that revolved around the guy was the fact that he wasn't given a trial at all. If it was so easy to convict him, why didn't this happen five or six years ago? Few on the left, held him up as a champion or speculated on his innocence.

I'll cheer it as a victory, but damn, if this isn't Pyrrhic. He's come to represent everything this administration has done wrong with respect to American civil liberties. Rather than try and convict him according to his rights, right away, he sat in a prison cell as a symbol of the Bush team's nose-thumbing at the Constitution.

A win, sure. Why couldn't we have had this win five years ago?

But, go ahead, and beat your strawmen instead. Cognitive dissidents, indeed.

Simon said...

Trevor - you need to distinguish between people like Padilla or Hamdi, who are citizens, or Moussauoui, who isn't a citizen, but was arrested and detained in the United States, on the one hand, and terrorist suspects who aren't citizens and weren't arrested in the United States on the other. I tend to agree with you that absent a suspension of habeas corpus, the government is obligated to provide due process to persons in the former category, but there is no such incumbency for the latter group, a fortiori when detained beyond the United States' territory. So I can agree with you as long as your comment speaks to nothing more than the present case and similarly-situated cases, but not if you're trying to make a more general point about the administration's conduct of the war on terror, for which this is an atypical and inapt example.

Joe said...

I'm in the pox on both their houses camp on this one.

No one should pretend Padilla's constitutional rights weren't trampled upon, but neither should anyone pretend he wasn't a thug and terrorist, even if a very bad one.

Simon said...

Joe said...
"No one should pretend Padilla's constitutional rights weren't trampled upon...."

Right, but neither should anyone try to pivot (and whether they realize it or not, it is pivoting) and trying to use Padilla's treatment as an argument against the treatment of non-citizens captured and held outside of America, which is a wholly separate issue. Perhaps not a morally distinct issue, but certainly if you want to make an argument (as many do) that the administration is violating not only moral norms but constitutional proscriptions, you have to address the distinction.

Andy said...

Perhaps what upsets some about this case is that this man, an American citizen, who was arrested on U.S. soil, was imprisoned for three and a half years with no charges brought against him and with no access a lawyer. Think about that for a minute -- an American citizen imprisoned for over three years without being charged or having access to a lawyer.

The only reason the government even charged him was to avoid the Supremes having to rule on whether the President can imprison citizens indefinitely without charges. Because they knew that even this results-oriented Supreme Court would have a difficult time condoning arbitrary executive confinement.

Oh, and they also tortured him during his indefinite detention. (I supposed one could argue that he was interrogated with "enhanced" techniques.) After they tortured him to the point that it was questionable that he was even competent to stand trial, they tried him. And convicted him.

And on the topic of Padilla's treatment while in captivity, I believe at one point the good professor here opined that one potential justification for the sensory deprivation imposed upon him while he was transported was because he could have potentially communicated with his terrorist friends via blinking in code. I still believe this is one of the most brilliant points made on this site.

Perhaps some believe that U.S. citizens -- you, me and even those guilty of crimes, deserve better. And perhaps others believe that 9/11 changed everything, including our Constitution.

For anyone to call this a victory of any kind for our country ignores the ugly truth about this case.

The Mechanical Eye said...


No one should pretend Padilla's constitutional rights weren't trampled upon, but neither should anyone pretend he wasn't a thug and terrorist, even if a very bad one.


But those constitutional rights exist precisely to protect suspects like Padilla - he might be a thug, but the U.S. had to prove it first. And despite all the laws they trampled, the government didn't even try to bring up the "dirty bomb" story.

Imagine if you got the Padilla treatment and were not guilty.

They may have gotten their man, but this case isn't something anyone at DoJ should be proud of.

DU

Michael said...

So, will the lefties start showing up at protest marches with "Free Jose" signs, or "Free Padilla" signs?

Chip Ahoy said...

Yay! *cartwheels*

Joe said...

the mechanical eye, I think you missed my point. That second sentence is condition on my first.

I am condemning both the side that dismissed the unconstitutionality of Padilla's detainment and the side that dismisses his actions.

Trevor said...

Thanks for checking, Simon. I do distinguish between them. Would that this administration had. My comment was mostly in response to the first few comments in the thread (and Michael's just above) which seemed to suggest that "the left" (or "lefties" or whoever) is somehow saddened by Padilla's guilt. Quite the contrary, I suspect. The fact that he WAS found guilty makes the way he was treated all the more frustrating.

He sat in solitary confinement and was tortured when he could have been serving a sentence. This Justice Department could have been pursuing other threats or other cases rather than stonewalling and arguing in favor of its decision to use this guy as a case study in just how far they could drag a U.S. citizen from his or her rights.

I'm glad to see that some voices here, yours among them, Simon, have noted the distressing facts surrounding this case.

Simon said...

Andy said...
"[E]ven this results-oriented Supreme Court...."

The instant you come out with that kind of cant, you forfeit the right to be taken seriously.

"After they tortured [Padilla] to the point that it was questionable that he was even competent to stand trial...."

Even Lindsay Beyerstein doesn't go that far, ascribing Padilla's mental state to the conditions of his detention, viz. solitary confinement.

The Mechanical Eye said...

joe:

Thanks for the clarification.

However, I still think we as a society should emphasize due process above merely getting the perp, thus my initial response to you.

We need to show that our way of life works. We should show that our methods of due process and respect for human and civil rights is superior to societies and ideologies based on fear, intimidation, and brute strength.

We made it a point to convict Nazis in a court of law at Nuremberg -- we didn't just hang them and throw our principles out the window for the sake of convenience. Our very methods confirmed the triumph of decency over a thuggish regime.

I think you and I are almost in complete agreement on this subject -- I just put more emphasis on one value than the other.

DU

Joe said...

Actually, eye, we may be in agreement--I would rather Padilla walked free than have his rights trampled as they were.

As you say, even beyond the worry of this kind of abuse being extended to other American citizens, it shows the world that we don't really believe in our constitution after all.

Hoosier Daddy said...

I am curious why Padilla versus say, the American Taliban guy (Johnny Walker something or other), say in solitary while Walker got his day in court? Unlike some others, I don't think the government is simply pulling people at random, accusing of them of terrorism and tossing away the cell key. I'm thinking there was some other underlying reason.

jeff said...

In what way was he tortured? I am not familiar with that accusation. If someone could fill me in or point me to a link?

SGT Ted said...

Considering we have only locked up a couple of people, like Padilla, during this war, rather than what we did during WW2 to the tens of thousands of Japanese Americans and Nissei shows that we have improved.

Unlike the WW2 detentions, at least Padilla is guilty of something.

Revenant said...

Oh, and they also tortured him during his indefinite detention.

Evidence, please?

After they tortured him to the point that it was questionable that he was even competent to stand trial, they tried him. And convicted him.

I like that passive phrasing -- "it was questionable". Anything is "questionable". What matters is the answer, and the answer to the question "is Padilla mentally fit for trial?" was found to be "yes". The only psychiatrists who found him unfit were the ones paid by the defense, and at least one of them was found to have fudged her data (e.g., diagnosing him with PTSD after "forgetting" to mention that he'd gotten a perfect negative result on a PTSD detection test).

Perhaps some believe that U.S. citizens -- you, me and even those guilty of crimes, deserve better. And perhaps others believe that 9/11 changed everything, including our Constitution.

The thing that made Padilla's detention odd is that he was captured on US soil. Had he been captured on foreign soil and indefinitely detained for the duration of the war there would be nothing unusual -- that has long been recognized as acceptable treatment of captured enemy combatants, whatever their nationality.

I agree that it is troublesome that Padilla was captured on American soil and detained in that manner. But since it turns out that he was, in fact, a terrorist, I really have better things to worry about.

joe said...

Walker was captured in a foreign country bearing arms against the US. Padilla was arrested on US soil. That is what made him a borderline case for unlawful combatant treatment. If, that is, you accept that unlawful combatants are not even entitled to Geneva Convention treatment, much less US constitutional protections. A US citizen captured in WWII as an unlawful combatant was not entitled to the all the rights inherent in a criminal prosecution and was instead subject to a military tribunal. This is not all new under Bush, my friends, these are long established rules of war.
And BTW, I think both Andy and Trevor did a nice job of proving the Drill Sgt's point.

Revenant said...

We made it a point to convict Nazis in a court of law at Nuremberg

It is funny that you would cite that as an example of the United States sticking to its principles, because the Nuremberg Trials would have been illegal under the United States Constitution. The bulk of the convictions were for violations of ex post facto law -- i.e., for violating laws that didn't even EXIST at the point where they were supposedly violated. On top of that, many of the "laws" they were charged with violating (e.g., "crimes against humanity") were established by a treaty Germany wasn't a signatory to.

Had they been tried under US law, and given the full measure of Constitutional rights to which Padilla's defenders feel all people are entitled, they would have gone free. Hell, we wouldn't have had a basis for arresting them in the first place.

jeff said...

How would what the US did during the civil war compare to his detention the past few years. Was the detention of Confederate soldiers unconstitutional? Should they have been given trials shortly after capture? How is this different (other than a much smaller scale) than what happened then? Serious question. He is accused and found guilty of taking up arms against his country? Is that or should that be considered something to be handled by the justice department?

jeff said...

"If, that is, you accept that unlawful combatants are not even entitled to Geneva Convention treatment, much less US constitutional protections."

Are they? And if so, where is this covered in the Geneva Convention?

PatCA said...

Definitely a win. Hurrah!

"A win, sure. Why couldn't we have had this win five years ago?"

If you can think of a way to convict terrorist enablers, prevent attacks, and not drive terror networks completely underground in the process, all in a utopian environment of civil liberties, do tell! I'm sure the government would like to know--or are you saying they are fascists and wouldn't care anyway?

joe said...

My understanding is that Geneva protections are extended to regular, uniformed military personnel of signatory countries. I don't think al qaeda or any jihadist scumbags who think like them are signatories.

jeff said...

"My understanding is that Geneva protections are extended to regular, uniformed military personnel of signatory countries. I don't think al qaeda or any jihadist scumbags who think like them are signatories."

That has always been my understanding as well, but for the last several years I continue to hear about how we are breaking the Geneva Convention with the treatment of the detainees. I would be most interested if anyone could give me the basis for these claims. It would seem to be acceptable for us to just shoot them and still be within the boundaries of the Convention. Where am I wrong?

Andy said...

Simon,

I forfeit the right to be taken seriously because I believe the current Supreme Court to be results-oriented? So, you're going to discount the points I tried to make simply because I hold this not-so-extreme opinion which is not even material to point of the post? I believe that's a bit lazy on your part. It's not like I said the moon landing was faked or something akin to that.

I do, however, appreciate your link to Lindsay Beyerstein but I'm afraid your synopsis of her post is inaccurate. I don't believe she ascribed his mental state solely as a result of solitary confinement. Maybe I'm wrong, but I simply don't see it in her post or in her comments below it.

Having said this, Simon, you will be happy to know that I do distinguish between arrests made on American soil vs. in foreign lands. But that's a whole different issue than the points I'm attempting to make about this case.

And before I'm accused of supporting terrorists, let me say that I'm all for aggressive prosecutions of suspected terrorists. It's just that I think the government has the obligation to follow the rules. Make sure their rights are respected, get them competent defense counsel, give them a fair trial and if the jury convicts, hammer them. To say that one's basic constitutional rights are contingent upon what crime the defendant is accused of committing is un-American.

Andy said...

Revenant, I'm sorry but I cannot provide "evidence" that Padilla was tortured. Thus, he must not have been tortured. Is that the correct logic?

I do, however, take issue with your description of the confinement of an American citizen for 3 and a half years without being charged and without access to representation as "odd." Odd?

It's also interesting that you're willing to forgive the violations of Padilla's constitutional rights because he was found guilty. That's called being results-oriented and trials conducted with this attitude are rarely, if ever, fair.

Joe said...
This comment has been removed by the author.
EnigmatiCore said...

Good.

Joe said...

It would seem to be acceptable for us to just shoot them and still be within the boundaries of the Convention. Where am I wrong?

Several months ago, I took time to actually read the Geneva conventions. It was very clear to me that your interpretation is correct.

So, while I think an American citizen arrested on American soil (who isn't representing a domestic group in active rebellion against the US government) should be accorded constitution rights, I have no qualms about executing these enemy combatants whom the Geneva conventions explicitly state can be executed. Though I also recognize that doing this may be politically stupid, and that must be taken into consideration.

The Drill SGT said...

Andy said...
Revenant, I'm sorry but I cannot provide "evidence" that Padilla was tortured. Thus, he must not have been tortured. Is that the correct logic?


looking at the possible locations we hold prisoners and the likely hood that we "torture" them (whatever that term means to whomever, I will hypothsize that:

1. guys that are held by non-US jailors overseas, I believe that they might be tortured.
2. guys held in US custody in the AOR, you might call what is done to them as torture, but I might call it "unpleasant" treatment
3. at GITMO, I don't think anything goes on that isn't part of the regime at an US civil prison, meaning they inflict solitary, denial of rec time, etc.
4. in the Navy Brig within the US? are you crazy? the Feds aren't doing that. among other reasons, it's too easy to get caught, or at least get bad press.

bottom line, I have no hard data, but I doubt that he was "tortured" under most any definition.

The Drill SGT said...

I have no qualms about executing these enemy combatants whom the Geneva conventions explicitly state can be executed.

ain't gonna happen, but I suspect that we have biometrics (fingerprints, retinas and DNA on all the boys we released from GITMO.

would not bother me if we ever picked up one in close proximity to a gun or explosives to line him up against a wall and shoot him. On the spot. The enemy combatant "two strikes and you're out" rule.

Revenant said...

Revenant, I'm sorry but I cannot provide "evidence" that Padilla was tortured. Thus, he must not have been tortured. Is that the correct logic?

I like that you put scare quotes around "evidence" -- like evidence is something suspicious.

Anyway, I don't know if Padilla was tortured or not, nor do I much care either way. My point is simply that you're claiming that he *was* tortured and you can't back that up. The only evidence for the torture is that a Muslim terrorist -- i.e., Padilla himself -- claims that the torture happened. I'm unconvinced by that evidence.

I do, however, take issue with your description of the confinement of an American citizen for 3 and a half years without being charged and without access to representation as "odd." Odd?

Yes, odd -- as in, if he had been captured somewhere OTHER than US soil during wartime and held without charges indefinitely until the conclusion of the war, that would have been entirely normal. That's how war works, citizenship of the combatants notwithstanding. Padilla's case was unusual in that while he was in fact fighting for the enemy, and was in fact captured during wartime, the capture and detention took place on American soil. That hasn't happened since the Civil War (when, of course, it was the fate of all captured soldiers on both sides).

That's called being results-oriented and trials conducted with this attitude are rarely, if ever, fair.

That's a rather bizarre non-sequiteur. I wasn't the judge and didn't serve on the jury. What does my being results-oriented with regard to the treatment of enemy combatants have to do with Padilla receiving a fair trial?

amba said...

"His intent was to study, not to murder."

Reminds me of that peculiar locution in the song: "Ain't a-gonna study war no more.""

Paddy O. said...

Yes, odd -- as in, if he had been captured somewhere OTHER than US soil during wartime and held without charges indefinitely until the conclusion of the war, that would have been entirely normal.

There's that scene in Band of Brothers where the squad is walking by a group of captured German soldiers. One of the soldiers responds to the GIs in English. Then tells them he's from Oregon, but volunteered because of his family. A GI stays and chats for a bit before being called away. A scene later an officer comes back to that group of German soldiers, hands them all cigarettes, then machine guns them.

All this to say is that had Padilla been caught in any other war before this one it's quite likely he would never have gone to trial at all. Which isn't justifying anything other than the fact that the Constitution has held up pretty well during these kinds of things in past wars. We might have a ways to go to sort these things out to everyone's satisfaction but it's silly to think this present case is somehow a step back from earlier in history. We have progressed and everything about the present conflict suggests this. But we also see and know more, so it's easy to both idealize the past and demonize the present.

The Drill SGT said...

Yes, odd -- as in, if he had been captured somewhere OTHER than US soil during wartime and held without charges indefinitely until the conclusion of the war, that would have been entirely normal. That's how war works, citizenship of the combatants notwithstanding. Padilla's case was unusual in that while he was in fact fighting for the enemy, and was in fact captured during wartime, the capture and detention took place on American soil. That hasn't happened since the Civil War (when, of course, it was the fate of all captured soldiers on both sides).

as a point of fact, 8 German spies were landed by submarine in the US in 1942. 2 of the spies were American citizens of German descent. They were arrested quickly, transferred to US custody. FDR had them tried by military tribunal and 6 of the 8 were sentenced to death and the sentences were reviewed by the Supreme court rapidly and carried out. so Padilla's treatment under the Bush administration was less severe that that used by FDR.

The Drill SGT said...

correction. I should have said:

all 8 were sentenced to death and 2 of the sentences were commuted. One to Life and the other to 30 years.

After the war, Truman freed them (2) into occupied Germany.

Cedarford said...

Trevor - As for using Padilla as a club to beat the left, most of the criticism that revolved around the guy was the fact that he wasn't given a trial at all. If it was so easy to convict him, why didn't this happen five or six years ago? Few on the left, held him up as a champion or speculated on his innocence.

I'll cheer it as a victory, but damn, if this isn't Pyrrhic. He's come to represent everything this administration has done wrong with respect to American civil liberties. Rather than try and convict him according to his rights, right away, he sat in a prison cell as a symbol of the Bush team's nose-thumbing at the Constitution.


Because the goal was not to convict him and have a lawyer dressed in robes pronounce sentence on him. The goal was to find out everything the thug and unlawful combatant knew about his comrades at war with us. War does not mean criminals...it means combatants trying to kill you...some within the laws of war, some outside them like Padilla and folks like the OSS agents, Nazi Saboteurs, Nathan Hale, Nelson Mandela - some considered, brave honorable non-criminals after hostilities end.
As it was, nothing from Padillas interrogations w/o legal counsel could be used in his criminal trial. Same with all the hysteria Lefties have about a soccer Mom being "accidentally listened to" by the NSA. Can't be used as evidence in a criminal trial involving US citizens!

Andy - Perhaps what upsets some about this case is that this man, an American citizen, who was arrested on U.S. soil, was imprisoned for three and a half years with no charges brought against him and with no access a lawyer. Think about that for a minute -- an American citizen imprisoned for over three years without being charged or having access to a lawyer.

So what!
An American citizen who was a traitor, an unlawful combatant, serving as agent of a foreign enemy force that had declared war on us in 1996 and 1998.
So what!

He was not a civilan criminal. He was an unlawful military operative. Ex Parte Quirin, much as Ruth Ginsberg and the ACLU wishes it never existed, ruled 9-0 that Nazi saboteurs, including 2 US citizens, had no right to habeas corpus. One US citizen traitor was executed, the other dumped in Germany years after WWII ended. Other US citizens discovered working with Nazi and Jap forces were shot on the spot, no trial.

Oh, and they also tortured him during his indefinite detention.

Oh, boo-hoo! Poor, poor little terrorist, subjected to isolation and no lawyers to buck his spirits up as he coughed up his pal's names.
Oh, boo-hoo!
You might have a point if you could compare it to the much better, humane treatment Islamists give to their infidel prisoners if you could find any living ones..

The Mechanical Eye - But those constitutional rights exist precisely to protect suspects like Padilla - he might be a thug, but the U.S. had to prove it first.

No, the Constitution does not protect Americans who side with and fight with the enemy. If they are LUCKY, they get to a tribunal or court. Ask any US soldiers what they would do if they learned they were facing an enemy with one group having American citizens in their ranks and they would all want to go after and kill the group with US traitors in it 1st.

Joe - It would seem to be acceptable for us to just shoot them and still be within the boundaries of the Convention. Where am I wrong?

You are not. Bush could order Padilla shot or go through a quick tribunal that formally ruled Padilla was an unlawful combatant subject under Geneva to no protection - and have in executed in perfect compliance with Geneva and International law.

It would be well worth it just to see the Left spasming out as some US citizen traitor Islamoid is hauled in front of a firing squad after a one-day military tribunal.

Hoosier Daddy said...

Revenant, I'm sorry but I cannot provide "evidence" that Padilla was tortured. Thus, he must not have been tortured. Is that the correct logic?

I can't provide evidence that you don't beat your wife/girlfreind/significant other but that doesn't mean you do. Right?

Do you find it ironic that you can level a charge that he was tortured with no evidence to support the claim, yet at the same time insist that the government prove it's charges of terrorism against Padilla?

Andy said...

I'm a bit surprised to hear so many on here with the attitude that because the guy was charged with being a terrorist, none of the normal constitutional rights that apply to every other criminal defendant apply. What this position means is that you are comfortable with our President can detain you indefinitely without charges or counsel simply by accusing you of being a terrorist. That infringes on the most fundamental right U.S. citizens have.

I will admit that because Padilla was found guilty, he's probably not the best example for this basic concept. Let's imagine for a moment, however, that the jury found him not guilty. Would that change anyone's mind about how the government treated him? Would an innocent American citizen detained indefinitely without charges or counsel bother anyone?

As for the torture issue, I see that many on here are trying very hard to deny that our government has been systematically engaging in it under the pretext of getting information in order to protect us.

My understanding of Padilla's torture situation is that one of the primary reasons the government didn't charge him with the much hyped dirty bomb allegations was that several of the witnesses (also alleged or actual terrorists) claimed that they were tortured to get the information about Padilla. Apparently, the government realized that these allegations of torture by the witnesses would come out at trial if they prosecuted the dirty bomb claim. I don't claim to have a crystal ball and know whether this is in fact the truth, but I have read it in several sources.

This is the United States and we should do better. Now, go ahead and attack me for standing up for the Constitution.

Fen said...

What this position means is that you are comfortable with our President can detain you indefinitely without charges or counsel simply by accusing you of being a terrorist

No.

"The Supreme Court held that "military tribunals are not courts in the sense of the Judiciary Article [of the Constitution]."2 Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.

To address some of the confusion, the Pentagon issued regulations to govern tribunals. Under Military Commission Order No. 1, issued in March 2002, the Secretary of Defense was vested with the power to "issue orders from time to time appointing one or more military commissions to try individuals subject to the President's Military Order and appointing any other personnel necessary to facilitate such trials."25

The military commissions established under President Bush will be composed of military personnel sitting as trier of both fact and law. Some of you may be aware that I have been chosen to be one of four individuals who will sit on a military Review Panel for military commissions. I cannot talk about any pending cases, nor can I discuss the possible outcomes of matters that have been heard. I can tell you that my responsibilities on this Review Panel will be much the same as my responsibilities as a Justice on the Supreme Court. In fact, the only instruction I have been given thus far is to be fair and impartial. I take comfort in that instruction as that is the only way I know how to judge.

During military commission hearings, any evidence may be admitted as long as, according to a reasonable person, it will have probative value. The defendant is entitled to a presumption of innocence and must be convicted beyond a reasonable doubt."

http://www.heritage.org/Research/NationalSecurity/hl834.cfm

What your talking about is the suspension of Habeas Corpus, which is NOT what POTUS has done.

Andy said...

Fen, thanks for the post but I'm afraid we're discussing different issues.

Padilla was not tried in a military tribunal/commission; he was tried in a federal district court under federal criminal law. The prosecution abandoned the "enemy combatant" designation for him for the reasons I tried to state above. When he was finally indicted, the prosecution then argued that the question as to whether the POTUS could detain citizens indefinitely without charges was now moot. And the indictment came before the SCOTUS had to decide the issue. Some argue that the 4th Circuit's holding that the POTUS in fact possessed the authority to detain indefinitely without charges is now the law because the question was never answered by the Supremes.

I guess I'm confused as to why your post is about the MCA, which wasn't an issue in the Padilla case, at least in the course that the case ran.

The essence of what I'm trying to say does in fact concern habeas rights. The government should not be permitted to detain an American citizen indefinitely without charging him, whether or not that person is labeled an enemy combatant and whether or not the person is ultimately tried in a civilian court or a military tribunal. If Americans are comfortable with this concept, then I am very concerned.

Revenant said...

I'm a bit surprised to hear so many on here with the attitude that because the guy was charged with being a terrorist, none of the normal constitutional rights that apply to every other criminal defendant apply.

Is, Andy. Padilla is a terrorist. That is why so many of us really don't care if he was mistreated.

I had concerns about his detention, as I've mentioned from time to time. Had it turned out that the government had no real case against him -- as most protesters claimed -- I would have been outraged. But as it turns out, he really is exactly what the government said he is: a terrorist. A member of the enemy forces we are currently waging war against -- a group whose welfare means less than nothing to me.

My understanding of Padilla's torture situation [snip]

My understanding of "Padilla's torture situation" is that there's no credible evidence that he was ever tortured. Either come up with evidence of torture other than the testimony of the convicted terrorist "victim" or stop making the accusation.

I have read it in several sources.

I've read in several sources that George Bush destroyed the WTC with explosive charges so he'd have an excuse to seize the Iraqi oil fields. Do you have a point?

Revenant said...

I guess I'm confused as to why your post is about the MCA, which wasn't an issue in the Padilla case, at least in the course that the case ran.

One point would be that the earlier treatment of Americans captured as enemy combatants establishes that they've no Constitutional right to a jury trial in civilian court.

You've been claiming that Padilla's Constitutional rights were violated. Can you point to a right that he was denied, but which prior citizen enemy combatants were granted?

Andy said...

Revenant,

Your admission that you don't care about mistreating people because they are found to be terrorists after the fact reveals a profound difference between you and me. Call me a nutcase but I think we owe it to ourselves to treat even the most despicable amongst us with basic human dignity. This is America.

Your next post misses the point because you erroneously think that I believe everyone this government arrests or captures deserves a trial in an American civilian court. I don't. Go read my posts again.

And as to whether I can "point to a right that [Padilla] was denied, but which prior citizen enemy combatants were granted," the only other American citizens I'm aware of being captured/arrested as enemy combatants are Lindh and Hamdi. There may be others but those are the only ones about which I've read. Lindh received a lawyer and a trial in a very short period of time.

In Hamdi, he didn't get a lawyer or charged for over 2 years. He was never charged -- simply held indefinitely. And I'm sure you're aware that once the Supremes heard the case, they ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge. So, at least the SCOTUS is with me on this one.

That's all I'm talking about here. Basic stuff -- requiring the government to actually charge and try the accused rather than permitting the government to let an American citizen rot in a cell for 3 and a half years.

You seem to be trying very hard to paint me as someone who doesn't care about terrorism. Defending Padilla's rights as an American citizen to be charged, have competent counsel and have a fair trial is not the equivalent of supporting the terrorists. It's supporting the Constitution.

Revenant said...

Call me a nutcase but I think we owe it to ourselves to treat even the most despicable amongst us with basic human dignity. This is America.

I think we owe it to ourselves to treat people with all the dignity and respect that they deserve. All the people -- not just the terrorists.

So far as I'm concerned, what Americans deserve is happy lives in peace, and what Al Qaeda members deserve is death by slow torture. I'm willing to settle for just "death", though. Let it never be said I'm unwilling to compromise.

the only other American citizens I'm aware of being captured/arrested as enemy combatants are Lindh and Hamdi.

Every single Confederate solider during the Civil War was, as a matter of United States law, (a) an American citizen, (b) captured on American soil, and (c) held, indefinitely, without trial. Usually in lousy conditions, too.

The key point that I think you're missing is that we are currently at war. Different rules apply during wartime. If you feel the President is abusing his wartime authority as commander in chief, the solution is to either (a) remove the President or (b) end the war.