The Volokh View on Padilla

Orin Kerr agrees with the Kos post Garrett cross-posted pretty much but much less effiminate and whiny hand-wringing.

He also notes and agrees with what I have been saying all along insofar that the Padilla prosecution broke new legal ground and, doubtlessly, opens up the question of what should be done with U.S. citizens who plot with foreign terrorist organizations.

I think Tim McVeigh showed us what we do with homegrown terrorists.


[Orin Kerr, August 16, 2007 at 3:48pm] Trackbacks
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.

We're so screwed.

Over five years after his arrest, multiple trips to the Supreme Court, and being held for years in a military brig without charge, counsel or judicial review--Padilla is found guilty. It's a jury verdict that has been so de-legitimized by the Administration's shenanigans in this case, that it's rendered practically (if not legally) meaningless. And we should all feel guilty for allowing a U.S. citizen to be subjected to this.

The jury ruling has been so de-legitimized by the twisted path to "justice" of the Padilla case that I search in vain for the meaning. He was arrested in May 2002 on a "material witness" warrant. Two days before the District Court was to rule on the validity of continuing to hold him, Bush designated him an "enemy combatant." He petitioned for habeas corpus to the Supreme Court, which dismissed his petition on technical grounds for being filed in the wrong court against the wrong person. He refiled in the proper court and got a favorable decision. But then a panel of the Fourth Circuit Court of Appeals ruled that Bush DOES have the authority to detain him without charges indefinitely. Meanwhile, the Administration released highly-inflammatory information alleging that Padilla was planning to blow up apartment buildings here in the U.S. (He was originally said to have wanted to set off a radiological "dirty bomb.") Padilla again appeals to the Supreme Court. A few days before Bush has to file arguments, Padilla is indicted in Miami on charges that he conspired to "murder, kidnap and maim" people overseas--charges totally unrelated to what the government used to justify holding him without charges.

So, he and his two co-defendants are found guilty of "support of terrorism" charges--not a big surprise given the jury's quick return from its day-and-a-half deliberations (never a good sign) following a 3-month trial.

But the conviction is a really a reflection on us. We are all guilty for letting a U.S. citizen be subjected to this kind of "justice."

US Citizens now "enemy combatant" at the whim of the President

Statement of Curt Goering
Senior Deputy Executive Director, Amnesty International USA
On Fourth Circuit Court of Appeals Decision
In Padilla vs. Hanft

Today’s decision stating that the president can label a U.S. citizen arrested on U.S. soil an “enemy combatant” and hold him indefinitely without charge is appalling, chilling and contrary to international law.

The Court’s ruling shows an extraordinary and damaging deference to the executive branch’s asserted ability to detain individuals arbitrarily and indefinitely in the broad and ambiguously defined “global war on terror.” Today’s decision has rubber-stamped the president’s specious assertion that these detentions are not bound by the rule of law.

All governments should take seriously their responsibility to protect their citizens from violent attacks. But an indefinite regime of “preventative detention” flies in the face of the fundamental principles on which the U.S. justice system was founded. Suspicion and innuendo cannot be used to deny anyone due process and a fair trial as guaranteed by the U.S. Constitution and international human rights law.

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