What Does the Padilla Verdict Mean?:
Here's my take. In the short term, the major significance of the Padilla verdict is that the Administration won't have to face the question of what to do next in this case. A guilty verdict only settles this one case, but this one case otherwise could have gone on for a long time and likely would have ended up back at the Supreme Court. In the longer term, this case adds one data point in favor of using the criminal justice system to prosecute terrorist suspects. Every case is different, and no one verdict can settle very much in this debate; each verdict can only be a single data point in a broader set. But this case adds a data point in favor of using the criminal justice system. Beyond that, though, this verdict doesn't settle very much. Most importantly, it doesn't change how Padilla has been treated all this time; it doesn't erase the last six years. So while this one case is over, the questions it raised should and will continue.
I'm not sure this data point means anything in favor of using criminal courts.
Not arguing in favor... but a good number of those held as illegal combatants are there based on classified evidence, or sources who are still providing key intel, or testimony from people who would never come forward in a court of law.
The real question is what to do with those who, given the limitations on evidence mentioned above, would never be convicted in a court of law. Padilla is now obviously not in this category.
Huh? He was held on a dirty bomb plot to kill Americans, which includes his active participation in Al Qaeda and conspiracy to commit murder. While the specific bomb plot was not included in his criminal indictment, the conspiracy including the terrorist involvement was precisely what he was convicted of.
Which counter-terrorist methods &operatives and other security issues were exposed in Padilla's trial?
Yes, it's a data point in favor of the criminal justice system -- if the government's objective were simply to punish terrorist accomplices for their bad acts, and/or to prevent them from future dangerous conduct.
But if, as in Padilla's case, the government's principal aim is to reduce the detainee to virtual nothingness in order to squeeze as much allegedly actionable intelligence from him as possible . . . well, in that case, the criminal justice system hardly does the trick, which is why the Administration opted for a Soviet-style regime of indefinite, incommunicado detention with no due process or human contact, and plenty of torture. And that's the real issue in Padilla's case -- not the trial, or the verdict, both of which would have been fairly unremarkable had they occurred several years ago, when Padilla was detained.
If he was "tortured" into this, why wasn't it entered into evidence by the defense? Why didn't Padilla take the stand and testify as such. Why not cross-examine the G-men up and down on the point? No motion to suppress due to coercion?
There is no evidence other than the enemy combatant terrorist Padilla's words to support your list of wrongs.
The wrongs are Padilla's and he got exactly what he had coming to him.
Padilla can't tie his shoe laces, year right. I bet he remembers how once its no longer part of a potential defense.
The unreasoned naivete of the left knows no bounds.
Perhaps its not naivete but a deliberate choice not to know.
Given the rules of evidence if the government was able to get this conviction then it unquestionably had many more reasons we may never know to detain him as an enemy combatant and the only appeals court to rule on this issue said the executive branch had every right to so do.
Says the "Dog"
Says the "Dog"
I'm amazed that anyone even disputes that Padilla, and the others held with zero rights, are/were tortured. I don't think they're just playing patty-cake with them in those secret prisons...
Perhaps you would be more persuasive if you didn't have 100% confidence that every possible fact that might support your preconceived views is true and every possible fact that might not is false.
How many fingers did he have cut off? How many electrodes attached to genitalia? Cigarette burns on the eyelids? Did they break his ankles and kneecaps? Rip out his fingernails? Sleep deprive him till he had a psychotic episode? Made him play Russian Roulette w/ a group of detainees?
Or was this all based on his account?
However, he had been in al Qaeda and had some useful intelligence. So initially they decided to have the FBI question him in Manhatten. Then he told them he had spent two weeks working with KSM and the entire cadre of people who supported and commanded the 9/11 attack. Suddenly the value of his intelligence went sky high. So he was transferred to military custody while they extracted any information that could be used to capture KSM and his crew.
Prosecuting and convicting Padilla for whatever criminal charges you could bring was possible at any point, but that prosecution would not have led to the distruction of the unit that planned and commanded the 9/11 attack. That required intelligence that could never have been obtained during such a prosecution.
Fortunately, in addition to criminal activity prior to July 24, 2000 for which Padilla has now been successfully prosecuted, Padilla was also separately and independently an enemy combatant based on his actions after that date. In a criminal prosecution he would have Maranda rights to a lawyer, but those rights do not apply to military detention of a captured enemy soldier during war.
Padilla could be convicted as a criminal at any time. Padilla could also be detained as an enemy combatant. Convicting him would not obtain intelligence about KSM critical to the defense of the country. So he was detained by the military until they had this intelligence, then was prosecuted for his crimes by civilian authorites. Criminal prosecution and military detention are not either/or alternatives. They can both apply to the same person and each has advantages which were exploited in this case.
You may look at his conviction and say, "See, the criminal justice system worked even with terrorists." However, you can also look at KSM, Binalshib, and al Baluchi in custody in Guantanamo, in part due to intelligence from Padilla, and say, "See, military detention and interrogation work too."
I agree with those observations.
I do wonder how the underlying questions will ever be resolved. The closest case to Padilla's is the al Marri case recently decided in the Fourth Circuit, and that is in some ways distinguishable. (Curiously, even though DOJ was willing to abandon the Fourth Circuit's holding in Padilla v Hanft to avoid SCOTUS review, the Supreme Court did not go along with that. So it remains "good law" in the sense that Barry Bonds holds the home run record -- with a fat asterisk.)
Meanwhile, like various unresolved matters roughly associated with the "war on terror" and executive power, this one seems likely to carry over into the next administration. I continue to wonder what the effect of that will be, and what positions various presidential contenders would take on the major legal controversies.
Intel exposed in the trial: None. That's the point. It's why the bomb charge wasn't part of the prosecution.
There may well be those for whom no evidence exists outside of that whose exposure in court would be a catastrophe, but which is solid and serious. Then what?
Because the judge specifically ordered the defense to keep quiet about this. The jurors were to not have any notice of what happened to Mr. Padilla these last five years.
Yeah, that's American justice for you.
We need to realize that the purposes of wartime detention and criminal prosecution are entirely different. Wartime detention of POWs is not punitive and is instead meant to prevent the captured enemy combatant from returning to the battle against our people. In stark contrast, criminal imprisonment or execution is meant to punish.
How do you figure? Trying for bomb plots necessitates the exposure of intelligence assets, but trying for conspiracy doesn't?
This is not wartime. In the sense where the rules you mentioned apply. Padilla is not a POW. If he was, there'd be no discussion.
Well, someone just gave up all pretense of credibility, and it isn't Orin.
I have a penchant for pointing out the obvious. A good way to demonstrate that you are a troll would be to claim--without the slightest justification or reason--that OK has a a "lack of certaintly" that is "intentionally designed to lead to the painful, bloody deaths of [his} and everyone else's family and loved ones."
Doubt and equivocation are the antithesis of action. Sometimes action is better than analysis. War is action not a think tank.
Said another way. I'm an entrepreneur not a scholar.
The entrepreneurs and the scholars among us will all think they understand what the above sentence really indicates about the writer, and they will take from it support for their own thinking. They will be wrong.
Says the "Dog"
Utilitarians would argue that one of the justifications for criminalizing and punishing certain behaviors is incapacitation. That is, the criminal justice system exists to remove negative behavior from society.
Of course, military detentions can serve this purpose as well. But your view of the criminal system as serving a purely retributionist function and mutually exclusive from the utilitarian function of military detainment is certainly not true from a functional or historical perspective.
Well, this is the hazard of creating your own ill-defined class of fighter that is not subject to any international treaties like Geneva. If he was a soldier, or even a spy or other class of combatant covered by Geneva, he would still have some rights under Geneva. The great evil of the Bush administration is they have tried, and to a great extent succeeded, in creating a class of non-persons, who have no rights at all under any international treaty or agreement or the U.S. constitution. And even when our courts say they do, they just ignore them.
And for all the claims about the terrible things he has been convicted of, look at the facts people. The evidence the government has amounts to nothing more to a few vague phone calls where they claim that discussions about shipments about relief supplies of vegetables to the countries in the middle east (and those involve Padilla's co-defendants, not Padilla himself--Padilla's only connection to the "terrorist" conspiracy are completely innocuous phone calls) are really code for weapons and a job application for Al Qaeda. There was zero evidence presented of any actual crimes committed in this or any other country and not even any allegations of any plots in this country.
I was trying to write a parody of some of the responses here (disagreeing on this issue = wanting your loved ones dead). Obviously, my talents lie elsewhere, but it's still a sad sign when the over-the-top screed wasn't instantly recognized as parody.
Sorry for the confusion.
A novel theory, but completely unsupported by any empirical evidence. The government never made such a claim.
And if we had listened to our think tanks we would have been prepared for the post invasion occupation--the Administration deliberately ignored the years of planning that had been created for just such a scenario because they didn't wish to admit that there would be an occupation.
(Of course, if we had listened even more carefully, we would have avoided this boondogle altogether--even Cheney knew better in 1994--and that was when we had up to 500,000 troops at hand.)
Appeals to anti intellectualism smack of the Cultural Revolution.
Parody had been officially declared dead by US Congress when it renamed French fries "Freedom fries".
Do you people make this shit up just because it sounds good or is it because Rush, Sean, or Drudge says it is so, so it must be true?
Fair enough. And it's hard to parody "The Dog." But really, I'm a fan of Orin's posts on this blog.
Unfortunately, the outrageous of the current Administration and its supporters are so over the top as to exceed nearly any attempt to parody them.
If I have called you a troll in error, I apologize.
I will not rise to defend the incompetent handling of the post invasion occupation by the Bush administration and its defense department. Neither will I rise to defend the gutting of our military size from 1991 to 2001, largely but not entirely by, Clinton and the Democrats.
I am not a fan of the Bush administration on anything but its determination to protect the country and take the fight to the enemy and taxes. Almost everything else Bush has been bad (and he wasn't alone there was and remains plenty incompetence in the republican congressional leadership as well).
Says the "Dog"
But if, as in Padilla's case, the government's principal aim is to reduce the detainee to virtual nothingness in order to squeeze as much allegedly actionable intelligence from him as possible . . . well, in that case, the criminal justice system hardly does the trick, which is why the Administration opted for a Soviet-style regime of indefinite, incommunicado detention with no due process or human contact, and plenty of torture. And that's the real issue in Padilla's case -- not the trial, or the verdict, both of which would have been fairly unremarkable had they occurred several years ago, when Padilla was detained.
Professor Lederman:
Prisoners of war never have been and hopefully never will be granted criminal due process.
As for the rest of your parade of horribles, exactly what is your evidence or "torture" outside of the uncrossexamined claims of a convicted terrorist in an affidavit?
Exactly why should be take Padilla's claims of "torture" any more seriously than the jury took his claim of being a freelance financier of Balkan Islamic charities?
You argue correctly that the government has the burden of proving its claims that Padilla was an al Qaeda terrorist.
Are you going to place the same burden on Padilla to prove his slanders against our military or do you routinely accept the claims of all anti American terrorists at face value?
Fighting terrorism is good as long as I don't actually have to pay for it.
Says the "Dog"
Agreed re trying to parody some of the adminisration's defenders. In the future, I will limit my attempts at humor such that I can't be mistaken for a troll. And now, back to the regularly scheduled broadcast.
Oh, I got it. It was masterfully done.
The fact that your post wasn't automatically regarded as satire is evidence of the point I was making above. Some of these people are so over the top that it's virtually impossible to parody them.
This is good stuff. Your humor was not lost on me, anyway.
But, as I learned in an earlier comment thread, there are enough people who believe this that the parody isn't obvious.
Lowering tax rates has brought billions/trillions of dollars in added federal revenues, and is therefore the best way to pay for the war. The fact that the idiot republicans and the idiot democrats who followed them outspend the increases in revenues is irrelevant to that truth.
Put another way, raising tax rates and causing a corresponding decrease in federal revenues is not the way to pay for anything, and only those among us who deny history and experience argue for repeating such lunacy.
Says the "Dog"
Good question.
What are you talking about? The evidence is undisputed and supported by several military officers. Being held incommunicado for months on end without any light or human contact is torture.
Prisoners of war never have been and hopefully never will be granted criminal due process.
Padilla was a United States citizen captured on United States soil. He was never given any process at all to determine whether we had done anything he was accused of during his four years of incommunicado detention. Under the precedent set, any US citizen could be subjected to this -- even if you aren't brown.
Think about it. But I know you won't think because you and the rest of the 25 percenters who still worship at the altar of Cheney live in a freaking different universe, where the "facts" consist of talking points fed to them by a fat drug-addict named Rush Limbaugh.
In the best of worlds, Padilla suffered this. Sensory deprivation is a form of torture. At least it was, back in 1999, when I read official government manuals on interrogation and torture. Who knows what those manuals now say.
By the way, I encourage anyone interested in these issues to read "Battle for the Mind: A Physiology of Conversion and Brainwashing." It's amazing how easy it is to break down a person - to literally reduce them to a babbling, screaming, crying non-person. Given enough time, none of us are immune.
Really, really interesting stuff.
Now some of you might say we should be able to do this to people like Padilla. I think that's a bad idea, but at least when making that argument, you do not reveal a fool's mind. But claiming that Padilla was never tortured? That certainly gives one a different impression.
JunkyardClown -- please read the United States Constitution, and read the part about control of spending -- it belongs in the Congress, this other branch of government that you might not have learned about in preschool.
Well put.
Says the Dog.
BD: As for the rest of your parade of horribles, exactly what is your evidence or "torture" outside of the uncrossexamined claims of a convicted terrorist in an affidavit?
What are you talking about? The evidence is undisputed and supported by several military officers.
Really?
Justice disputed all the allegations of "torture" made in the Padilla motion.
Name a single military office who personally witnessed the acts which Justice denied.
BD: Prisoners of war never have been and hopefully never will be granted criminal due process.
Padilla was a United States citizen captured on United States soil.
So was one of the saboteurs working for the Germans in the US during WWII, who was held as a prisoner of war without due process and tried by a military tribunal with limited due process.
So were all the Confederates captured during the Civil War. The lawful combatants were held as prisoners of war and Lincoln ordered all the unlawful combatants to be executed without due process.
Says the "Dog"
We can start with looking at Padilla's final interrogation tape. What's that? The tape was lost? Funny how such a thing could happen to such a high profile terrorist.
Not indefinitely but until hostilities have ended.
Says the "Dog"
Do you really think "but the government says it didn't do anything wrong" is a persuasive argument?
--To the commenters in general -- I haven't been able to google up anything on the statement provided by one of Padilla's jailers at the brig, where he expressed concerns about Padilla's treatment. Anyone better able to recollect that?
But in the case of an entity like al-Qaeda, you'll surely concede that the "end of hostilities" is a legal fiction, right? Obviously there will never be a political accomodation with al-Qaeda that leads us to no longer regard its adherents as a threat.
These Islamic terrorists are members of a death cult. You'd never agree to let them walk the street, even if they signed a piece of paper promising to be good forevermore, isn't that right? So talking about "the end of hostilities," as if we're in a war that will someday be ended with a peace treaty, is just a way to kick the can down the road.
Until we've invaded all the Muslim countries, killed their leaders, and converted their people to Christianity?
(Has anyone seen Coulter &JYLD in the same room at the same time? Just asking.)
Al Qaeda declared war on us. They can surrender any time they want, if they desire to end hostilities. On the flip side the democrats are free to declare defeat and defund our defense any time they choose. Oh wait Harry Reid already declared defeat. I guess he just needs to put that declaration of defeat, a surrender and end to hostilities, and defunding of the military into legislation and get it enacted into law.
Either way hostilities get ended.
So again. Its not indefinite detention just till hostilities end.
Says the "Dog"
Says the "Dog"
So if al-Qaeda signs a surrender document, you'd let all the al-Qaeda adherents at Gitmo go free, just as with POWs at the end of any other conflict?
Get a grip.
Says the "Dog"
Yes if we believed the surrender were genuine, they intended to be bound by it, and they no longer had the means to continue the fight. Just like the situations with Japan and Germany.
Says the "Dog"
Bank robbers want to destroy our economic system by stealing money and, incrementally, undermining our way of life. We need to them as enemy combatants, isolate them, use all lawful methods to squeeze all information out of them about their networks of "evil doers" -- SO WE CAN PROTECT OUR WAY OF LIFE.
People who defraud investors want to destroy our markets. We need to them as enemy combatants, isolate them, use all lawful methods to squeeze all information out of them about their networks of "evil doers" -- SO WE CAN PROTECT OUR WAY OF LIFE.
PEOPLE WHO DISAGREE WITH THE ADMINISTRATION ARE TREASONOUS SLANDERERS WHO WANT TO DESTROY OUR CULTURE. WE NEED TO TREAT THEM AS ENEMY COMBATANTS . . . .
Ok, since I'm humor impaired today, are you trying to be funny?
If not, I should point out that suggesting that the war on terror (i.e., abstract nouns) is anything but indefinite is rather hard to support.
While it may be correct that war is not the best tool to confront Islamic extremism, the fact remains that warfare was the tool the duly elected Congress chose to use. This choise was almost unaminous, no less. Tackling Islamic extremism through war is not just a Bushhitler policy, it's a United States of America policy.
This scenario seems pretty tough to envision in the context of the present conflict. I'm going to stick with my original position that "the end of hostilities" is nothing but a fiction.
I thought it was SOP to blindfold prisoners of war when they’re being moved so they don’t learn anything about their surroundings that might aid them in trying to escape or support an attack. Looks like a high-tech version of a pretty sensible precaution.
Here's a thought experiment: Under the definitions of "enemy combatant" and "prisoner of war" advanced by Bart and others who support Padilla's indefinite detention, does the crime of treason become wholly superfluous?
No.
Conviction of a crime involves a set term of imprisonment with criminals rather than fellow POWs or execution.
Wartime detention only lasts as long as the conflict.
BTW, If you think that being imprisoned with criminals is not punishment, watch and see what happens to Padilla if he is released in the general population of a maximum security federal prison. He will be beaten and gutted like a fish within 24 hours. This is one of the reasons why the GC do not allow POWs who comply with the laws of war to be tried and treated as criminals.
It seems that anyone believed by the Executive to have committed acts constituting treason can simply be held indefinitely under an enemy combatant theory.
No.
The military has a specific definition of an enemy combatant which does not have the same elements as treason.
Because prison populations consist of uber-patriots, I suppose?
Anyway, who the heck said that "being imprisoned with criminals is not punishment"? That's one of the most bizarre statements I've seen in a long time.
This case was pretty unique so it doesn't add any data points for using the criminal justice system in prosecuting the war on terror. With the sole exception of cases where the suspect is an American Citizen captured on American soil, and only then because the Supreme Court saw fit to modify established precedent. The vast majority of cases do not fit these facts. The overwhelming consensus after 9/11 was to reject treating terrorism as a law enforcement problem, and we are not going to go back any decade soon. To most lawyers every problem is a legal problem, just like to a chiropractor most health problems are due to the spine is out of alignment.
Probably because not all prisoners of war are lawful combatants which would make them protected by the Geneva Conventions.
Al Qaeda prisoners are not prisoners of war because they do not satisfy the requirements for that status (namely obeying the laws of war). Thus they are not given the rights and protections given to POWs. But if one can hold a POW indefinitely it stands to reason that one can similarly hold an illegal combatant who has fewer rights and protections.
BD: BTW, If you think that being imprisoned with criminals is not punishment, watch and see what happens to Padilla if he is released in the general population of a maximum security federal prison. He will be beaten and gutted like a fish within 24 hours.
Anyway, who the heck said that "being imprisoned with criminals is not punishment"? That's one of the most bizarre statements I've seen in a long time.
See all the posts which state or imply that Padilla's confinement in the military brig was hell on Earth compared to imprisonment awaiting a civilian criminal trial. In fact, the reverse is very likely the case.
Because prison populations consist of uber-patriots, I suppose?
Criminals have their own code of behavior. Traitors fall in about the same category as snitches.
I will wager that the Feds have kept Padilla in isolation for his own protection since being released from the brig and will continue to do so when he is sent to prison.
Yes, the French and Germans proved that at Verdun.
Then he said:
So, now we know which script Orin is following on this blog, right?
You are looking for inconsistencies where none exist, unlawful combattant status is quite different from POW status. The fact that we chuse not to execute unlawful combattants doesn't mean we have to let them go.
I'm not aware of a principle that says that "unlawful combatants," whatever they are, can be held indefinitely without POW protections. Or executed. The legal tradeoff for indefinite internment is protected status.
Quite the opposite. POWs can be held for the duration of a conflict precisely because they enjoy the right and protection to remain exempt from criminal courts and prosecution. A non-POW, among other things, may not be tortured and is subject to a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Sorry, that just doesn't compute!
No offense, but there is likewise no legal principle that "The legal tradeoff for indefinite internment is protected status."
If you're looking for a historical term, try the term "Francs-tireurs" - Francs-tireurs has been used for an armed fighter who, if captured, is not entitled to prisoner of war status and can be executed. See 7th Nuremberg war crime trial - 'The United States of America vs. Wilhelm List, et al.
If they can be executed and arguabley Al_qaeda members should get less rights than francs-tireurs as the F-Ts attacked military targets while A-Q focusses its attacks on civilians, they can certainly be held indefinetly given that we're too civilized to execute them.
Al Qaeda irregulars, as they do not comply with the Geneva conventions and protocols get no Geneva rights.
It is the Adminstrations view that Al Qaeda members are illegal enemy combatants, they can be held without a trial (but with a hearing to deterimine their status) until hostilies cease, they are not entitled to the privileges of POW status. Nothing at all inconsistent with that. If some posters here are less than precise about the distinction between POW's and illegal enemy combatants it doesn't mean that the actual policy is wrong or inconsistent.
Oddly, it's been the "Kill Padilla first, ask questions later" supporters (in this thread and today's other threads), at least five times, get exposed as being utterly ignorant of material facts. Which is worse than being crazy.
Oh, and as far as law school attracting crazies.... Um.... Wasn't a non-legally educated person relieved of his blogging duties at a very popular legal weblog because his posts were so crazy? I'm not going to name names, but I remember what went down. So do a few other people.
So I'm not sure that law school is the problem. It's probably d be the fluoride in the water.
Not exaxtly.
Not if said captured combatant is "unlawful."
And then we are all back to where we started.
Like so many things these days, there is no "middle ground."
No longer can reasonable people reasonably disagree.
The intrarater reliability to answer any question has its distribution not in a bell-curve but in a parabola.
Do those here who "support" (if you can call it that) Padilla in his legal battle with the USA think global warming is anthropogenic and catastrophic?
Do they reject a border fence and "enforcement first" policy re: immigration?
Did they think Libby was guilty?
And so forth.
And vice vera, of course.
(I almost added WTC 7, but didn't have the heart.)
In any case, this one case does little to answer the question of what to do with the next US citizen, captured on US soil, having been to or returned from an AQ or similar training camp.
'Cause there will be more of them, no doubt about that.
Unless we win.
Or lose.
Just sayin'.
Its is hard to get so many facts wrong is such a short paragraph, besides ak47pundit correction above, POW's are not exempt from criminal procedings, its just that most POW's are not law breakers. There is no law against getting captured while fighting for your country in a legal war, but break the laws of war and then the POW will be subject to trial, conviction and punishment. On the other hand Ex-Parte Quirin ruled that Non-POW's (illegal enemy combatants) were not subject to criminal courts and could be tried by military tribunals and sentenced to death, without review by civilian courts (other than deciding if the charged crimes came under military jurisdiction). The Supreme Court ruled that civil law just didn't apply in such cases.
Did you get all that from Wikipedia?
Oh. My. God.
In a high-security brig in Carolina? One guy? What, Osama's going to parachute in with a team of Islamic ninjas?
How are you not ashamed of yourself for writing this stuff, Mr. Winston? You can't possibly believe it.
1. As we know, procedural errors, even by very lowly agents of the state, can short-circuit a case. It is even alleged (how accurately I don't know) that that already happened in this case.
2. The people trying to kill us are not contract killers. They do not think of themselves as criminals. They are at war with us, even though, so far, we have not seriously made war against them. This seems like a perfect opportunity for the lawyers to butt out before somebody gets seriously hurt.
What, we have to go by Osama's self-estimation?
Was Timothy McVeigh at war with the U.S.? Serious question; please answer.
Padilla's suppor thas been based on one thing and one thing only: hatred of Bush, nothing more. Padilla now falls into the "Mike" Hawash category now, a poor victim of Bush who eventually was guilty of pretty much everything he was accused of.
While I have not agreed with everything Bush has done, I am not about to fall on the side of people like Padilla because of it. One thing I love already is how the media reports and commenters are now pointing to him not being convicted of the "dirty bomb" plot as if that makes him as clean as Casear's wife. To me, that's like a run-of-the-mill criminal defendant's attorney saying to a jury "hey, my client's innocent. He only wanted to stab those people to death, he didn't want to mow them down with an Uzi."
One other thing: I don't see this as a vindication for those who think our criminal justice system is the proper forum for murderous terrorists. Padilla is a U.S. citizen and should have been tried in our courts. Non-citizens should not be given the benefit of our Constitution, especially those engaged in warfare with us. I always said to my law school classmates who disagreed with that position that, "I'll tell you what. I say give the terrorists bail, and move them all into your neighborhood while they await trial. After you, since you say they are all innocent goat herders who have become victims of Bush, what do you have to fear?"
Also, I'm intrigued by the casual assumption that all these people are guilty. Padilla was, but that doesn't mean everyone was. We've released many found not to be guilty, which was evident from the data in the Seton Hall Report, but only after years of holding them at Gitmo. I wonder: Does anyone feel at all bad about the fact we detained innocent people for years without trial?
frankcross sez: 'who in the same breath deny them the Geneva protections for prisoners of war'
The other side doesn't adhere to those conventions. The Geneva conventions have never, ever protected an American prisoner anywhere in Asia. Not in Japan, China, USSR, Iraq, Afghanistan, Iran, Vietnam or anywhere else.
It is silly, immoral and dangerous to fight a war and give the other side points.
My question, in the other thread, about why some Americans accept waterboarding and some don't, but all seem to consider mosques as sacred no-go areas was seriously intended.
If we do not take Islam as a threat, the question of 'war' or 'criminal justice system' disappears. Neither is warranted.
If Islam is a threat, then our rules of engagement are setting us up to lose.
When it comes to war, I am an instrumentalist, not a legist. Losing a war for all the best reasons is a bad idea.
I said that POWs can be held for the duration because of their exemption from criminal courts and prosecution. That war criminals can also be tried in military tribunals does not correct my statement; it simply provides additional, tangential information.
I said nothing about criminal courts and civil law with regard to non-POWs. What I said is that non-POWs are subject to a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Criminal courts do not exhaust the domain of regularly constituted courts. Furthermore, Quirin does not authorize either torture or indefinite detention of non-lawful combatants.
Frankly, I think that the Al'Queda form would have established at least enough to justify holding Padilla as an EC. Furthermore, it could have been offered in open court. It had no intelligence value at any time. The enemy clearly knew that the form had been compromised.
However, there may be cases in which the evidence cannot be offered in open court. So the result is some sort of FISA like system, which determines whether or not a person detained here counts as a combatant, which is not a criminal conviction and does not carry a penalty other than detention as a combatant.
Even if we think that the 4th Circuit's ultimate determination that a citizen captured on US soil can be held as a combatant is wrong, the Administration has clearly demonstrated that they have the power to put people in black holes for long enough to psychologically destroy them with no real court review. They left the question open so they can do it again.
Having such a court might be a civil liberties victory in reality at this point even if it would be a concession in theory.
You are wrapped around the axle of criminal law, trying to apply it to war. Enemy combatants whether legal or illegal can be held for the duration of the hostilities, in addition illegal enemy combatants can be tried, in by a military tribunal to which constituional protections do not apply. If an illegal enemy combatant is aquitted by a military tribunal of illegal acts, what does he become? A legal enemy combatant, to be held until hostilities cease.
You have this strange notion that being an illegal combatant is like a get out of jail free card, if there isn't evidence beyond a reasonable doubt, then they have to be released, absolutly not so.
Harry Edgar,
I think you are mistaken about the mosques, the rules of engagement allow our forces to attack any location from which they are taking fire. That includes mosques. They aren't going to drop a 500lb bomb on a mineret where a single sniper is holed up, but they probably don't need to to eliminate him.
What claims does the government have to make? Originally, the govt said Padilla was involved in trying to make what is known as a dirty bomb and use it against US civilians.
They later chose not to charge him with that. What do they have to claim to not charge somebody? Point is, they either realized they had insufficient evidence or they didn't want to expose how they got the evidence. They don't have to claim anything at all.
Yeah, I know, you could swear a jury to some kind of classification above "secret", but I don't think it would work.
Point more broadly is that some stuff you need for intel and ops is not suitiable for criminal prosecution. Those are two separate subjects.
You have this strange notion that being held as a combatant of any stripe in the "war on terror" is the same thing as being one. If this were a declared war with specific territory where battles took place, that would be, if not a non-issue, far less of one - the phrase "captured on the battlefield" would actually have some meaning. Unless the prisoner was actually arrested while at a training camp or in the act of carrying out an attack, you're talking about people who were investigated and arrested in the same way that police investigate and arrest common criminals. And just like with the police, there needs to be some standard of proof that they're not arresting whoever the hell they feel like.
We are (or should be) free to pursue our own defense according to whatever rules we think fit our society. They could even be (in the hands of Bush the appeaser, have been) far more restrictive than the Geneva conventions would allow.
My point is that we owe NOTHING to Geneva, nor Human Rights Watch or anybody else.
You could argue, perhaps, that a very lenient policy would make Muslims of good will (it is a religion of peace, after all; they have told us so) give up their antagonism and decide to live in amity with infidels.
I don't think anybody really thinks this is the case in the real world, but if that's the kind of argument you want to make, make it.
My preference, based on what I think I understand about Islam and how it has worked in the past, is for war a l'outrance. Despite what Kazinski says, our forces do avoid mosques, funerals and other 'touchy' kinds of engagements.
This is not entirely novel. In World War II, there was a big argument about bombing the Imperial Palace in Tokyo, and great confusion in Europe about whether it was OK to ruin cultural sites. Sometimes we did (Monte Cassino, Dresden), and sometimes we didn't (Rome, Paris).
(The question of bombing or not bombing Hanoi or Haiphong was even more complicated.)
Right now, we're giving the Muslims a pass we were not willing to give Germans, Japanese or even Frenchmen. For many months after the 8th Air Force got to Europe, it dropped most of its bombs on France and killed way more Frenchmen than Germans.
Right now, we are enjoying the worst of both worlds. We face an enemy as ruthless as the Nazis and even more capable of striking us at home, and we have restricted our ability to fight back to ridiculous levels.
Don't imagine the Muslims haven't noticed we are not trying. They are not interpreting this as 'our recognition of individual freedom and rights,' concepts that mean nothing to them.
They think we are cowards.
Lots of places to go with this but I'll keep it simple. It does not matter one whit how ruthless islamists are or what they are willing to do or whether or not they think you are a coward. All that matters is what they are operationally capable of achieving. How many of them are there and what can they do. The reason your WWII analogies aren't useful is that when the Allies were bombing Axis positions in France its not as if there were a bunch of Germans sitting on the sidelines wondering whether or not they should join up with the Nazis, who might be persuaded to do so if they saw Allied bombs kill too many Frenchmen. Al'Q is not a nation state. It is in your interest to find ways to reduce its operational capability without simultaneously donating to its recruitment efforts by actually becoming the bloodthirsty tyrant their propaganda accuses you of being.
For an analogous point made by someone you are unlikely to accuse of being "liberal" please see recent State Department statements on Tom Tancredo.
Kazinski,
You have this strange notion that defeating your own straw man contributes something meaningful to the discussion.
He was captured in an airport upon arrival from overseas. Under the precedent of ex parte Quirin (1942) I believe this overseas nexus is the dividing line between the bulk of us and the possibility that "any US citizen" could be so subjected.
Excuse me, the assertion was made above that the dirty bomb case was dropped because it would reveal intelligence sources. I merely asked for some confirmation that some government official, other than some rightwing nutcase or some lying scumbag organ of the rightwing media, had ever made such an assertion. As I recall, Ashcroft made the initial dirty bomb assertion without a shred of documentary evidence to support it. Several months later, without any further explanation, the administration changed the plot to blowing up apartment buildings in New York with a massive natural gas explosion and then they just kind of dropped the whole subject until the Supreme Court was about to take Padilla's case. That is when they magically produced the current charges.
If you want to assume the government didn't charge the dirty bomb plot because they didn't want to reveal sources, that is fine. But don't claim that the government said that was the reason they didn't charge Padilla for the dirty bomb plot, that is just a lie.
Traveling overseas was not the nexus the government relied on. Alliegence to a foreign power was the dividing line under "the precedent of ex parte Quirin", that and conspiricy to violate the laws of war.
Lets put it this way, don't conspire with Al Qaeda and you don't have to worry about the brig.
The whole issue in the Padilla case is that he was held for nearly four years based upon nothing more than the assertion of the President that he was conspiring with Al Qaeda. The President has asserted that he has the right upon his say so only to declare anyone in the world an enemy combatant and hold them for as long as he sees fit without any opportunity to challenge that designation.
If Alberto Gonzalez called a press conference today and claimed that the government had evidence that you or I had attended Al Qaeda training camps and were involved in a plot to detonate a dirty bomb in the U.S., well then we could also end up in the brig in South Carolina, blindfolded and sleep deprived with no contact to the outside world for the next three and a half years.
One reason for military tribunals is to avoid publicizing intel. It's not the only reasaon.
The feds have found themselves hobbled in mob prosecutions because of the desire to avoid publicizing
some of their methods. It's why they have the witness protection program.
Winston: I thought it was SOP to blindfold prisoners of war when they’re being moved so they don’t learn anything about their surroundings that might aid them in trying to escape or support an attack. Looks like a high-tech version of a pretty sensible precaution.
Oh. My. God. In a high-security brig in Carolina? One guy? What, Osama's going to parachute in with a team of Islamic ninjas? How are you not ashamed of yourself for writing this stuff, Mr. Winston? You can't possibly believe it
Anderson, you apparently have a problem with reality.
It is basic military SOP to keep enemy captures from observing their surroundings. As an infantry platoon leader during the Persian Gulf War, we placed sand bags over the prisoner's heads and transported them inside our Bradleys so they could not see or hear anything concerning their surroundings in order to plan escapes or attacks.
It is ridiculous to think that blocking the sight and hearing of Padilla while walking him a short distance to get medical treatment would last long enough to have any sort of significant sensory deprivation effect. Indeed, Padilla is getting plenty of sensory input as he is physically guided along.
You are missing my point. The assertion was made above that the reason given by the government for not pursuing a conviction on the dirty bomb plot was a desire not to reveal sources. This may indeed be a reasonable assumption. But it is simply lying to say that the government ever claimed that was why they were not charging Padilla for the dirty bomb plot. No reason was ever given.
Can you explain what possible reason there would be to blindfold and place sound deadening earmuffs on him when he is in a high security brig, well-guarded and escape is impossible? Is that military SOP once enemy captures are confined and in a controlled situation?
Disagreement with his opinions and logic is your right. It is not your right and frankly beneath you to attempt to organize a censorship of his posts, through wholly unsupported innuendo and indirect implied character complaints.
If the people on the left at Balkin were successful in getting opinions with which they disagree censored, that is neither a good reflection upon Balkin's operators or upon the character of the left wing monkeys chanting for censorship over there.
Says the "Dog"
That sounds about right. Padilla has already killed once (which got him sent to prison where he converted to Islam and was eventually recruited by the enemy) and deluded fantasies of ninja troopers aside, we’ve already had people injured and one CIA operative killed by these fanatics during the riot in the prison in Afghanistan and prisoners at Gitmo attacked guards after staging a fake suicide attempt. If keeping a prisoner from observing his surroundings and isolated from other prisoners prevents them from planning an attack, an escape, or even if just prevents one of them from being able to take advantage of a momentary distraction, then it seems a sensible precaution.
That remains to be demonstrated.
Al Queda is not a nation-state, but of the 200 or so nation-states, just about one-quarter are fairly described as 'Muslim.'
Islam has been around for 1,400 years. I think we can say that it has achieved its mature form.
It has always made war on all its neighbors. Unsuccessfully for the past 300 years, for the most part, but living peacefully with infidels has never been part of the program.
Or the lack thereof...
Again, good theory. But of course there were no other prisoners for Padilla to plot or even communicate with (he was being held all by himself). There is no justification for the sensory deprivation other than to continue his torture (and torture it most certainly was). Shackling and handcuffing would have been perfectly adequate to prevent him attacking his guards or attempting an escape.
And technically, he was not a prisoner. As a prisoner he would have had some rights--like to see his lawyer.
Might the hazard of restricting one's concepts to those defined by Geneva be that Geneva doesn't cover everything?
How does that contrast to the history of Europe?
Elliot: The contrast is that, right now, Europe isn't attacking anybody. Try to keep up.
Spain is no longer making war in Morocco, for example. But on every border between Islam and the rest of us, there are violent attacks on infidels.
Given the pervasiveness of Islam within society -- the two are coterminous in theology and to a great degree in fact -- it is obvious that this violent expansionism is the program. We didn't need the caliphate conference last week to figure that out.
You and Tom Cross are making the 'good German' argument. That one has gotten any less smelly with age.
Yes, Europe did stop. My question was about the long period of history you mentioned. It doesn't seem that the two cultures differ very much in their war making tendencies.
Nor is there any reason to think Europe will not return to its bloody past. Over the long haul, we can find many periods where one group stopped while the other continued.
I am making no argument, just asking about the history you cited. The history doesn't show either Islam or Europe to be "good Germans."
Sorry you consider Harry Eager's historical references to be a waste of time. Since there are many lessons to be learned from history, we should be sure to fully appreciate it. Perhaps you would care to compare and contrast the war making tendencies of Islamic states and European states? You might start with the Crusades, Albegensian Crusades, Inquisition, Hundred Years War, Thirty Years War, Conquest of North America, Conquest of South America, Conquest of India, African slave trade, Opium Wars, World War I, World War II, dozens of European colonies, Hitler's slaughter of millions, Stalin's slaughter of millions...
So don't get on your high horse. Anybody can list a number of wars.
The discussion on this thread is not European history. It's about a current threat.
The digression--we're just as bad as they are, if worse, so we don't have any right to complain, much less do anything about it--is obvious.
If you want to discuss what you pretend to want to discuss, start another thread, or your own blog. Or mail free Zinn and Chomsky to various libraries.
> Again, good theory. But of course there were no other prisoners for Padilla to plot or even communicate with (he was being held all by himself). There is no justification for the sensory deprivation other than to continue his torture (and torture it most certainly was). Shackling and handcuffing would have been perfectly adequate to prevent him attacking his guards or attempting an escape.
Meanwhile, back in the land of reality, ALL policies dealing with prisoners... weather its a policy about blindfolds on a transported prisoner or how to conduct a room search... do not get applied only in cases where would make sense to J.F. Thomas. So there WILL be blindfolding during transport if there is a policy for it, just as there WILL be the prisoner removed from the cell when searching it, even if the fellow is 75 and hardly a threat.
Surely, there is no one left who is so utterly divorced from reality that this is not obvious with a moment's thought?