[Orin Kerr, August 14, 2007 at 2:36pm] Trackbacks
United States v. Jose Padilla Closing Arguments:
Latest news report here. If Padilla is acquitted on all charges, will the government once again declare him an enemy combatant? If so, I'll be very interested in the response from the General Counsel of Boeing.
Howard Gilbert (mail):
When an enemy soldier is captured he can be detained as a prisoner for the duration of the conflict. However, he can be released earlier if he gives his parole (word of honor not to return to the fighting), or in exchange for other prisoners, or for medical reasons. None of these conditions applied to Padilla's release.

Padilla was declared to be an enemy combatant by the President and was found to be an enemy combatant by the Fourth Circuit, which was the final legal decision in his case. He still is legally an enemy combatant. However, there is no provision for the government to take him back into custody. Once released by the military he can be tried for civilian crimes and if convicted must serve his sentence, but then he has to be repatriated.

The real question is how to "repatriate" an American citizen when the army he was a member of is in hiding and occupies no territory to which he can be returned, especially when he probably doesn't want to go back. He might be released inside the US, but then I would hope the judge is wise enough to insist that as a condition of his release he give his military parole. Otherwise, he has combatant immunity and could in theory kill anyone in uniform without being charged with a crime (although he would then return to military prison for the duration). Only after formally renouncing his combatant status would it be rational to release him from custody. This is yet another inconceivably stupid mistake of Alberto Gonzales who should have cleared things up properly before transferring him to civilian custody.
8.14.2007 4:23pm
Colin (mail):
He might be released inside the US, but then I would hope the judge is wise enough to insist that as a condition of his release he give his military parole.

If he's acquitted, can the judge set such a condition for his release?
8.14.2007 4:31pm
Tony Tutins (mail):
One thing still bothers me: As far as I know, the term "enemy combatant" has no meaning under international law, where one is either a soldier or a civilian. Does it have meaning outside the Administration and the Fourth Circuit?
8.14.2007 4:48pm
Just an Observer:
If Padilla is acquitted on all charges, will the government once again declare him an enemy combatant? If so, I'll be very interested in the response from the General Counsel of Boeing.

I'd be even more interested in a response from Kennedy, Roberts, Stevens and their colleagues. What Luttig rebuked with mailed fist, they did with velvet gloves.
8.14.2007 4:53pm
NicholasV (mail) (www):
One thing still bothers me: As far as I know, the term "enemy combatant" has no meaning under international law, where one is either a soldier or a civilian.

I thought the Geneva/Hague conventions deal with a number of other categories, including protected persons (e.g. medical personnel), spies/saboteurs/non-soldier combatants, etc.?
8.15.2007 10:09am
markm (mail):
If he is an American citizen and an "enemy combatant", whatever that means, then there's a much shorter and clearer term for him: "traitor", with penalties prescribed by law. If they had solid evidence of that, then he should have been indicted and tried, long ago. But it sounds like they have very little real evidence against him, and are trying for some sort of guilt by association to justify violating his rights for so long...
8.15.2007 1:10pm