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Scripts for When Padilla Jury Hands Down Its Verdict:
The Jose Padilla case is complicated, and those who need a script for commentary when the verdict is handed down in an hour or so should follow these simple guidelines:
  Script for Supporters of the Bush Administration: If the jury convicts, this proves how strong the government's case has been all along. If the jury acquits, this proves that you can't try to bring terrorism cases in a criminal court system.

  Script for Opponents of the Bush Administration: If the jury convicts, this shows how the criminal justice system can indeed handle terrorism cases. If the jury acquits, this shows just how weak the case against Padilla has been all along.
  Of course, that's not to say that these arguments are either equally strong or mutually inconsistent; the verdict alone won't shed light on these questions one way or the other. But those are the scripts that will be followed.
WHOI Jacket:
That's pretty scary accurate.
8.16.2007 2:45pm
Mark Field (mail):

If the jury acquits, this shows just how weak the case against Padilla has been all along.


If the jury acquits, that will reinforce the barbarity of the despicable and inhuman treatment the Administration subjected Padilla to.

Wrong thread, but I disagree with your prediction. I think we'll see a guilty verdict.
8.16.2007 2:46pm
CrazyTrain (mail):
Orin continues to avoid taking any position on any issue that is actually important.
8.16.2007 2:59pm
MacGuffin:
Of course, that's not to say that these arguments are either equally strong or mutually inconsistent; the verdict alone won't shed light on these questions one way or the other. But those are the scripts that will be followed.


Fine, the snark quota is full.

Now how about shedding some light on these questions?
8.16.2007 3:02pm
Q the Enchanter (mail) (www):
"this shows how the criminal justice system can indeed handle terrorism cases"

But didn't we already know the criminal justice system can indeed handle terrorism cases?
8.16.2007 3:04pm
MJG:
OMG!

There are people with AGENDAS who will make ARGUMENTS in favor of their AGENDAS regardless of the OUTCOME! All this time, I thought spin was a myth.

In all seriousness, these "I will predict everyone's argument before they make it" posts that have been cropping up recently contribute little to any kind of meaningful debate. Sure, these arguments may or may not be "strong or mutually inconsistent," and surely they will get made, but it doesn't take a law professor to point out that these very basic positions will be the ones taken, regardless of the outcome.
8.16.2007 3:04pm
OrinKerr:
MJG,

I disagree. Pointing out that people are speaking from scripts is designed to push people to stop speaking from scripts; it's designed to make people think twice, and perhaps feel a bit ashamed, when they reach for the talking points.

I don't claim that this will magically improve public debate in America. But I think improving the substance of debate is really extremely important, and I thought I would do my part (and perhaps entertain people along the way). If you have an argument as to why these sorts of posts fail to achieve those goal, I am certainly open to hearing that; indeed, I would really like to hear your reasoned argument. However, your only apparent argument above is that "it doesn't take a law professor" to make my point, which is obviously true but plainly irrelevant.
8.16.2007 3:19pm
Anderson (mail) (www):
2:20 p.m. EDT, where's the freakin' verdict?
8.16.2007 3:19pm
Justin (mail):
I would imagine, regardless of the outcome, we've shown that we can try domestic terrorism cases in criminal courts. And regardless of the verdict, Mark Field's point about barbarity is valid. Just because you can predict the arguments doesn't mean the arguments are anywhere near invalid.
8.16.2007 3:22pm
elliottg (mail) (www):
Can't have a verdict until another indictment is ready to keep Padilla in custody.
8.16.2007 3:23pm
WHOI Jacket:
Is there a video feed somewhere?
8.16.2007 3:23pm
Nikki:
Anderson: perhaps the reporters are occupied with the announcement of Jenna Bush's engagement? (I'm about halfway serious ... it's breaking news on CNN ... interesting timing.)
8.16.2007 3:23pm
Anderson (mail) (www):
Wait ... Jenna Bush is engaged to Jose Padilla???
8.16.2007 3:24pm
OrinKerr:
Anderson,

Now that sure would raise some really interesting legal questions.
8.16.2007 3:25pm
Anderson (mail) (www):
And make one helluva Lifetime movie of the week.
8.16.2007 3:26pm
Hattio (mail):
Orin Kerr,
I'm not going to quite go along with OMG. I think there is some value to pointing out that folks speak from scripts. But, he, and other commentaters have a point. Whenever something is embarrassing for the conservatives/Bush administration, you generally take a "meta-view" and do things like examine the fact that people (including left/Democrats/liberals) speak from scripts. But when things are embarrassing for the left/Democrats/liberals, you're very willing to look at the substance and ignore the meta-views that the Bush Administration/conservatives are speaking from a script.

I guess what I'm saying is that's the script you speak from. And, I'm sure this feels like an unfair attack, but it's not.
8.16.2007 3:27pm
WHOI Jacket:
verdict in: Guilty on all counts
8.16.2007 3:27pm
Anderson (mail) (www):
Maybe liberals annoy Prof. Kerr more than conservatives, as a matter of taste? Not an incomprehensible aesthetic, that.
8.16.2007 3:28pm
Anderson (mail) (www):
Ah, thanx WHOI, as I predicted. Where you seeing that?
8.16.2007 3:28pm
GV:
This shows how the criminal justice system can indeed handle terrorism cases
8.16.2007 3:29pm
Anderson (mail) (www):
Took the words out of my mouth, GV.
8.16.2007 3:30pm
A.S.:
This proves how strong the government's case has been all along.
8.16.2007 3:30pm
AntonK (mail):
Jury Convicts U.S. Citizen Jose Padilla of Aiding Al Qaeda

I think this proves how strong the government's case has been all along :)
8.16.2007 3:30pm
Philistine (mail):
Given the guilty verdict—are OK's two scripts actually inconsistent?

I.e.—can't it be true that both that the Government's case has been strong all along, and the criminal justice system can indeed handle terrorism cases?
8.16.2007 3:31pm
WHOI Jacket:
On Kos, strangely enough.
8.16.2007 3:31pm
Ian D-B (mail):
well at least now maybe they can stop torturing him.
8.16.2007 3:31pm
Stevethepatentguy (mail) (www):
Damn you GV.
8.16.2007 3:31pm
elliottg (mail) (www):
The script for me is that regardless of guilt, the government's actions have been reprehensible.
8.16.2007 3:33pm
OrinKerr:
Hattio,

I appreciate your substantive response. I'm curious, though, can you give some examples? Off the top of my head, I only remember joking about scripts after Justice O'Connor retired, when I wrote a post that turned into an LATimes op-ed. I'm not sure who that was embarassing to, except perhaps op-ed pages. I'm also not sure how I can be biased on this one because we don't yet even know what the verdict is. If I were actually waiting to see which side was embarrassed before blogging about the scripts here, wouldn't I wait until we know how the verdict turned out?

Anyway, I look forward to the examples; I always learn from thoughtful and well-supported criticism of my blogging.
8.16.2007 3:34pm
Anderson (mail) (www):
WHOI: Ha, I was looking on Drudge and Fox! What does *that* say about our respective mentalities?
8.16.2007 3:36pm
GV:
Anderson, great minds think alike?

...

I don't understand the conservative talking point. If this proves they had a strong case against Padilla, then why not try him, get your guaranteed guilty verdict, and ship him off to prison for the rest of his life?
8.16.2007 3:38pm
Gabriel Malor (mail):
I always learn from thoughtful and well-supported criticism of my blogging.

Ouch. I caught a little of that backhand standing all the way over here, Professor.
8.16.2007 3:39pm
MikeC&F (mail):
My script: Jose Padilla, after being held in conditions most of us could not imagine, and none of us could endure, is a broken man who was never fit to stand trial.

Also, whatever the verdict: It's true that the Department of Justice lied about its ability to put forth a case against Padilla. "We can't prove our case" is what DOJ said early on. Once it appeared that it was going to lose its ability to detain people indefinitely, it suddenly was able to prove its case.

So whatever happens, the fact remains that Justice [sic] at best manipulated the federal court system; at worst, Justice [sic] lied to several federal judges about the evidence it had collected and would be able to present at trial.

Those are the real issues presented in Padilla. One man's guilt or innocence is trivial when measured against the entire federal prosecutorial system's misconduct.
8.16.2007 3:43pm
JunkYardLawDog (mail):
Given the verdicts, not has Padilla's treatment not been barbaric, but was far more lenient than enemy combatants fighting against the Taliban and Al Qaeda ever receive.

His arrest, detention, and treatment while detained were obviously wholly appropriate in the circumstances, and a prudent use of executive power to protect the innocent citizens of this country from the violence the traitors among us have in mind for our children.

Says the "Dog"
8.16.2007 3:46pm
GV:
Given the verdicts, not has Padilla's treatment not been barbaric, but was far more lenient than enemy combatants fighting against the Taliban and Al Qaeda ever receive.

And on a related note, I believe the healthcare here is better than Angola's. We must be doing something right.
8.16.2007 3:49pm
JunkYardLawDog (mail):
BTW,

Some of the hand wringing and attempts to rationalize this defeat at the hands of the evil Bush empire are really entertaining and are giving me quite a pick-me-up today!!!

Should we start a pool until how many hours post verdict till somebody here or on KOS posts a theory about how Dick Cheney fixed the jury?? LOL.

Maybe this is the *real* reason Rove resigned. He was needed to carry the bag of money to the jurors in the Padilla case??

Out my window right now the sun is shining and the sky is firmly fixed in place!!!

Says the "Dog"
8.16.2007 3:50pm
JunkYardLawDog (mail):
GV,

And better than in the UK where they will kindly provide you a doctor who has received all the best training that medical school in Baghdad can provide. A doctor who hates your guts and wants to blow up your children. For free too!!!!!!!

Also, better make sure you don't tell Michael Moore that healthcare in the US is better than in Angola.

Says the "Dog"
8.16.2007 3:53pm
MacGuffin:
His arrest, detention, and treatment while detained were obviously wholly appropriate in the circumstances, and a prudent use of executive power to protect the innocent citizens of this country from the violence the traitors among us have in mind for our children.

Do you expect the treatment of Padilla to remain the same now that he appears destined for incarceration in the criminal justice system? If not, does that mean that innocent citizens of this country will soon be unprotected from the violence the traitors among us have in mind for our children?
8.16.2007 3:55pm
Script Boy:
Not inconsistent talking points: This goes to show that the governments case was strong on the charges brought. But the government was prevented from bringing more serious charges because the criminal justice system is not designed to handle terrorism cases.

In the interests of national security, Padilla was questioned without counsel and without Miranda warnings as to other terroristic activity not at issue in this trial, and therefore evidence as to those charges would have been inadmissible in a criminal trial.
8.16.2007 3:57pm
Bob from Ohio (mail):
The scripts are only half right, at best.

You said:

Script for Supporters of the Bush Administration: If the jury convicts, this proves how strong the government's case has been all along. If the jury acquits, this proves that you can't try to bring terrorism cases in a criminal court system.

Script for Opponents of the Bush Administration: If the jury convicts, this shows how the criminal justice system can indeed handle terrorism cases. If the jury acquits, this shows just how weak the case against Padilla has been all along.



Wrong on the conviction one for "Supporters". The trial should not have happened. There was nothing wrong with the prior unlawful combatent procedure. We tried him these charges just to avoid letting a terrorist go as the opponents would prefer. Conviction is a good thing but the traditional criminal justice system has no business in thi sarea. The WTC prosecutions really saved the buildings, didn't they?

Wrong on the acquittal one for "Opponents". As seen here, they went right to the torture argument despite conviction. Even though the only "evidence" of torture here is the word of Padilla.
8.16.2007 4:04pm
JunkYardLawDog (mail):
Do you expect the treatment of Padilla to remain the same now that he appears destined for incarceration in the criminal justice system?

23 hour per day supermax isolated lock down, that's pretty much the same as what he's had so far. So the answer is yes.

Says the "Dog"
8.16.2007 4:05pm
MacGuffin:
Oh. So if his treatment will be the same (and presumably has been the same since November 2005) in criminal detention, what was the need for special military detention again?
8.16.2007 4:12pm
Nikki:
Sucker bet, JYLD ... you just posted one.
8.16.2007 4:12pm
Just an Observer:
Example of a scripted talking point sighted soon after Orin's prediction today, posted by a commenter trolling at Balkinization:

If the United States had enough evidence to convict on all counts beyond a reasonable doubt in less than 2 days of deliberations, they had far more evidence than necessary to hold Padilla as an enemy combatant for the duration of the war.
# posted by Bart DePalma : 3:12 PM
8.16.2007 4:40pm
Hattio (mail):
Orin Kerr,
Sorry, but this case is an embarrassment for the administration despite the verdict. First they say he wants to build a dirty bomb. Then they say he was going to blow up apartment buildings. Then they say he sent money to terrorrists...after holding him for 3 + years.

And BTW, does his time held as an unlawful enemy combatant count against his eventual sentence?
8.16.2007 5:06pm
OrinKerr:
Hattio,

Wait, the government's victory is really an embarrassment for the government? Then would an acquittal have been an embarrassment for Padilla?
8.16.2007 5:24pm
Hattio (mail):
Orin Kerr,
The fact that there is a trial (ie., "this case" as I said before) on a much reduced charge is an embarrassment for the Bush Administration. I said nothing about whether the government's victory was an embarrassment. As a matter of fact, I made it pretty clear that it was the continual reduction in seriousness of what he was accused of that was an embarrassment.
But, I will have to withdraw my accusation that you often take a "meta-view," on things embarrassing to the right/Bush Administration. That was my sense, but looking back in the last few weeks I can't find any areas where you did so. And I do find areas where you addressed the substance in things embarrassing to the Bush Administration.
Can you really assert that having to go to court on such a reduced charge (even if you get a conviction) isn't embarrassing? You were an ADA I believe. If you had gone in the papers asserting somebody was a drug kingpin importing tons of cocaine, and the only charge you could bring against him was possession of an ounce of marijuana wouldn't you feel embarrassed?
8.16.2007 5:34pm
JunkYardLawDog (mail):
what was the need for special military detention again?

To waterboard his traitorous arse and get as much actionable intelligence as possible from some nut job who may well have had advance notice of 9/11 and supported same against the country who had sustained him all his life.

I offer no apologies for his treatment. I find it fully justified and appropriate in the circumstances. I don't run from what was done, instead I run to support and defend it against those who wish to interpret our laws and constitution as a mutual suicide pact.

BTW, I do oppose torture, like taking a sledge hammer to one's knees or feet or hot pokers up the colon. Waterboarding on the other hand is just a way to make sure the enemy combatant's pipes are clean.

Its a health thing. A proper part of the free medical care plan for all terrorist enemy combatants.

Says the "Dog"
8.16.2007 5:51pm
MacGuffin:
So 23 hour per day supermax isolated lock down also includes waterboarding?
8.16.2007 5:59pm
Andy123 (mail):
JunkYardLawDog, do you prefer the Nazis' justification for waterboarding or Stalin's?
8.16.2007 6:31pm
Daniel Quackenbush (mail):
With our fear of terrorism, and the "where there's smoke, there's fire" burden of proof, did anybody really expect an acquittal, regardless of the evidence?
8.16.2007 6:54pm
JunkYardLawDog (mail):
Andy123 are you trying to insult the memories of Nazi's and Stalin by comparing their torture techniques and human rights observance to the comparatively "Nancy Boy" techniques used by the USA??

Whatever you do don't make me wear a blindfold and stand on a box while holding a loose wire.

Says the "Dog"
8.16.2007 9:07pm
Jason (www):
great post orin kerr! quite well done.

i would weigh in more but i'm concerned i'll be associated with commenters.
8.17.2007 4:00am
Richard Aubrey (mail):
Daniel. Other than sympathy for Padilla's goals, what leads you to believe he should have been acquitted?
8.17.2007 11:12am
Little Loca (mail):
Wait, there are still people who support the Bush Administration???
8.17.2007 7:19pm