What Did We Learn From Padilla?
The New York Times provides an interesting analysis of the Jose Padilla conviction, one that essentially credits the Bush administration with a victory. The jury convicted Padilla in almost no time at all, saying that the evidence was overwhelming -- and yet the question remains as to why the administration didn't just put Padilla on trial from the beginning:
In a significant victory for the Bush administration, a federal jury found Jose Padilla guilty of terrorism conspiracy charges on Thursday after little more than a day of deliberation.Mr. Padilla, a Brooklyn-born convert to Islam who became one of the first Americans designated an “enemy combatant” in the anxious months after Sept. 11, 2001, now faces life in prison. He was released last year from a long and highly unusual military confinement to face criminal charges in Federal District Court here.
The government’s chief evidence was a faded application form that prosecutors said Mr. Padilla, 36, filled out to attend a Qaeda training camp in Afghanistan in 2000.
The jurors, seven men and five women from Miami-Dade County, would not speak publicly at the courthouse and left through a side entrance. But one juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began.
“We had to be sure,” the juror said in Spanish. “We wanted to make sure we went through all the evidence. But the evidence was strong, and we all agreed on that.”
In the immediate sense, the Bush administration can chalk this up as the significant victory the Times notes. Many of its critics assumed that the government had no case against Padilla, and therefore tried to hide him in the Navy brig for over three years. They accused the administration of torturing Padilla while in isolation, rendering him incompetent for trial. Yet an open criminal court not only found him competent, but also guilty of a significant conspiracy to support and commit terrorism against the US.
However, the very victory claimed by the administration calls into question their approach to Padilla all along. Unlike Hamdi, an American captured on the battlefield in Afghanistan, Padilla was arrested in the US. As a citizen arrested by law enforcement, he should have had the same Constitutional protections as anyone else arrested for conspiracy. If the Department of Justice had the ability to convict Padilla on these kinds of charges all along, then they should have pursued them immediately, rather than locking him away for years without charges or due process.
The Bush administration has taken the understandable position that terrorists captured on foreign battlefields do not require habeas corpus. Wars cannot be fought under the terms of civil law enforcement. The Hamdi situation enters a seriously gray area in this regard, as American citizenship grants certain rights that the government cannot just wish away. With John Walker Lindh, captured under similar circumstances and arguably more culpability, they used the criminal courts as the best way to meet those Constitutional responsibilities, and won a conviction.
We should have done the same with Padilla, especially since he was captured not on a foreign battlefield but here in the US. If he conspired with al-Qaeda to kill Americans, then he's a traitor -- but even traitors have to be convicted in criminal court, with the due process we expect as Americans. And since it seems that the government had all the evidence it needed to convict him at the time of his capture, they have no excuse for applying an exotic and incorrect status to him to strip him of his rights to due process. After they won the conviction that would send him to prison for life, they could have worked on the other case at their leisure.
The Bush administration has done an excellent job in protecting this nation from attack, but they made a mistake with Padilla -- one they implicitly admitted when they finally moved his case to the criminal court system. It's one they should acknowledge explicitly and endeavor not to repeat.
UPDATE: John Cole says I didn't go far enough, and that the Bush administration only transferred Padilla when they had exploited him as much as they could politically. I think a case could be made that the administration wanted to test executive powers in the courts, and only pulled back when they thought they might lose. It makes more sense than having Padilla sit around as an ongoing threat, rather than trying him on these charges and ensuring that he'd never leave prison again. Had they taken that approach, they may have even won a conviction on the dirty-bomb conspiracy as well.
I still think they would have had a case for treason, based on the evidence provided at the trial. Al-Qaeda declared war on the US in 1998. His application to join al-Qaeda showed that he wanted to give aid and comfort to an enemy of the United States. However, he still should have been tried, using the normal Constitutional process for that charge and others, not locked away without charges and without resort to a lawyer.
American citizens arrested on American soil should get Constitutional protections, unless Congress suspends habeas corpus legitimately. The Bush administration should acknowledge this and ensure that it doesn't happen again.
Posted by Ed Morrissey on August 17, 2007 5:17 AM | Comments (25) | TrackBacks (2)
Comments (25)
Posted by shaun | August 17, 2007 6:16 AM
The U.S. Constitution is not like a Chinese restaurant menu where you pick something from column A and something else from column B and pretty much ignore the rest.
That is the approach that the Bush administration has taken in prosecuting --or holding indefinitely without trial or access to counsel -- many more people than just Jose Padilla.
You implicitly state that had the Bush administration merely played by the tried and true rules that are memorialized in the Constitution -- that is use the entire menu, including a dish called due process -- Padilla might have been convicted years ago. And yet you praise these people for their "victory."
Methinks you need to have one of those drinks with the cute little umbrellas and think things through a little more thoroughly in light of the contradictory (and in my view extralegal) behavior you endorse.
Posted by onlineanalyst | August 17, 2007 6:31 AM
Shaun said: "That is the approach that the Bush administration has taken in prosecuting --or holding indefinitely without trial or access to counsel -- many more people than just Jose Padilla."
And your evidence for this claim is? Have you names and sources to support this charge?
Posted by mrlynn | August 17, 2007 6:42 AM
Somewhere yesterday I heard that the government was unable to proceed on the most damning charges against Padilla, namely his plan to attack the country with radiological ('dirty') bombs, because of some procedural problem (e.g. not getting read his 'Miranda rights' soon enough).
I agree that the delay in prosecution was reprehensible, but could it have had something to do with the need to collect evidence for a new set of charges?
/Mr Lynn
Posted by HocusFocus | August 17, 2007 7:15 AM
"Unlike Hamdi, an American captured on the battlefield in Afghanistan, Padilla was arrested in the US"
Wasn't that John Walker Lindh? Hamdi was OBL's driver.
Posted by amr | August 17, 2007 7:50 AM
I have a sneaking suspicion that the Administration was concerned about legal discovery and evidence requirements. Many spies have gotten off with relatively light sentences because the government did not want to exposed people and methods to public scrutiny so as not to damage future investigations. Note that he was not tried for the proposed dirty bomb conspiracy. Therefore, they played a wait and see what courts will do game to limit the above exposure.
Posted by Bennett | August 17, 2007 7:56 AM
I think they handled Padilla the way they did to see how far they could push it. It's probably also important to remember that he was arrested pretty early on, at a time when it was easy to believe that there might be lots of Padilla types lurking here in the US (and maybe that's still easy to believe). The government wanted to see what the outer edge of its authority would be when it came to dealing with US citizens arrested on US soil for terrorist activity. Can be they just be dropped down a hole somewhere without due process or will all the normal rules apply? Hopefully they've now come to the conclusion that the latter approach is probably best.
Posted by Joseph Bell | August 17, 2007 8:22 AM
Shaun (of the brain-dead) writes:
You implicitly state that had the Bush administration merely played by the tried and true rules that are memorialized in the Constitution -- that is use the entire menu, including a dish called due process -- Padilla might have been convicted years ago. And yet you praise these people for their "victory."
Methinks you need to have one of those drinks with the cute little umbrellas and think things through a little more thoroughly in light of the contradictory (and in my view extralegal) behavior you endorse.
Captain Ed wrote:
The Bush administration has done an excellent job in protecting this nation from attack, but they made a mistake with Padilla -- one they implicitly admitted when they finally moved his case to the criminal court system. It's one they should acknowledge explicitly and endeavor not to repeat.
Shaun seems to have some basic reading problems, and should be (explicitly) ignored.
Good work, Captain! It is good to hold all administrations to the requirements of the constitution.
Posted by TierFlyer | August 17, 2007 8:24 AM
Or, perhaps the Administration looked at their options and decided a period of intense interrogation to get operational details followed by a trial would best serve the national security requirements.
Had to say they messed this up when they (a) stopped a potential bombing, (b) convicted the guy in open court, and (c) made every jihadist who was in contact with JP wonder what he'd said for three years.
-TF
Posted by NahnCee | August 17, 2007 8:44 AM
I think the government waited this long to prosecute Padilla because American citizens have taken this long to become educated about the dangers of entities like Padilla, that they are real, and that they are in our midst.
We've seen in the last couple of elections that there is a heavy-breathing committed right and left in America who keep track of these things and are more or less well-informed. However, the vast majority of Americans prefer not to know too much and go out of their way to remain uninformed in order to maintain an even keel in their personal lives.
It's taken six years since 9/11 for this majority of Americans to learn by osmosis about CAIR, dirty bombs, infiltration of Arabs across our Mexican border, and born-Americans-who-hate-use like Padilla and John Walker Lindh. It's been my observation that most Americans - and therefore juries made up of Americans - are more or less up to speed now on what we're facing. They may not know all the discreet details, unless they're serving on a jury and forced to face them, but they've got the over-all gestalt, and understand immediately what's involved in a Dubai ports deal or amnesty for illegal aliens.
I note, too, that one of the jurors interviewed in the Padilla case answered in Spanish. Which means he or she probably wasn't born here, and might have lots of sympathy for someone named "Jose". The fact that that person also thought he was slam-bang guilty means that despite the best efforts of MSM, the Muslims and their behavior are losing the "bridge-building" war in their attempts to "educate" Americans -- and EVERYone can see them for the plague that they are.
Posted by TierFlyer | August 17, 2007 8:51 AM
Ah, foo, I forgot to say that I've never agreed that "one should never attribute to malice what can be explained by stupidity" but it seems to hold in this case.
I think people outside large organizations think there is a grand plan set in concrete that is followed with Bond-villianesque efficiency. Uh, no.
So perhaps the course of events with Padilla was dictated by apparent "facts on the ground" as they were changing.
-TF
Posted by jms | August 17, 2007 8:55 AM
The Bush administration has made it clear since September 11th that when dealing with terrorists, preventing attacks takes precedence over obtaining criminal convictions. I strongly suspect that Padilla had more information than he was letting on and that this was the primary reason -- for better or for worse -- for handling him the way they did.
Posted by Cornellian | August 17, 2007 9:10 AM
I agree that the delay in prosecution was reprehensible, but could it have had something to do with the need to collect evidence for a new set of charges?
The government doesn't get to throw US citizens in prison without access to counsel or family for years in order to collect evidence of a crime they can prosecute in order to justify locking them up in the first place.
Posted by bigG | August 17, 2007 9:28 AM
AMR has hit the nail on the head. The problem with this proscecution is just like every other security related case. The defense tries to get extremely classified information during discovery. If the judge rules for the defense, this forces the government to drop it's case or lessen the charges in a plea deal in order to protect it's sources or methodology.
Posted by bigG | August 17, 2007 9:34 AM
AMR has hit the nail on the head. The problem with this proscecution is just like every other security related case. The defense tries to get extremely classified information during discovery. If the judge rules for the defense, this forces the government to drop it's case or lessen the charges in a plea deal in order to protect it's sources or methodology.
Posted by Josh D | August 17, 2007 9:48 AM
It's concerning, and shameful to a certain degree, that political differences cause people to attack the President's actions as malicious and blatantly illegal when he has acted in good faith to protect this country as best as possible.
There's no doubt mistakes have been made and trade-offs made between civil liberties and security and that these decisions should be debated, challenged and discussed. But to slander the President as some have done rather than objectively debate the proper course of action should a political selfishness and hatred that's sad.
Regarding the Padilla case, the President should have tried him in US courts from the outset. The President should also establish rules that clearly differentiate between different classifications.
US citizens arrested in the US or international civilian setting (any foreign country minus battlefields or terrorist training camps, etc.) should be tried in US criminal courts with full due process.
I'm not sure how to treat US citizens arrested on a battlefield or enemy territory, but some serious level of due process should apply - perhaps in a military court setting.
Non-US citizens, especially those captured in enemy territory get zero constitutional protections and those participating in terrorist activities do not get geneva convention protectsion.
Posted by po | August 17, 2007 9:49 AM
All that time and trouble and this is the best they could do. Padilla, master terrorist, what a joke! Thousands of hours of telephone calls and he's on a handful. "His" signature on some piece of paper. Years and years go by. And the Spanish speaking juror . . . yeah, you get the picture. Kangaroos and mini-moos.
This administration, with Congress and the Judiciary turning blind eyes, have made this country the laughing-stock of the world. They've made a mockery of the principles upon which it was founded. Strict constructionists my ass.
Go grab your victory and hold on to it tightly, I hope the weight of it ultimately drags only those that believe in down, but I fear otherwise. Go live in fear, to love and to serve the all-knowing commander-in-chief.
Posted by TomB | August 17, 2007 10:30 AM
The flip side of the delay is that Padilla got much better chance for a fair trial. I can easily imagine much tougher jury back in 2002/2003. Still, waiting for 5 years in a military jail is a long time.
As per NahnCee comment above, most immigrants have much more common sense, that Liberals and ACLU would give them credit for. They know very well that the public opinion can turn against them quite easily when the going gets tough, guilty or not guilty. They came here to live their lives in peace and prosperity and are probably quite determined to keep it that way, getting rid of various “Che Guevara” wannabees.
Posted by Theodore | August 17, 2007 10:38 AM
Sorry but there is more than adequate precedent for holding Padilla as a combatant. German sabateurs during WWII, including a US citizen were captured by the FBI, turned over to the military as enemy combatants, then tried and executed by a military tribunal. And it was all blessed by SCOTUS so the precedent still stands.
Convicting Padilla yesterday is actually a war crime under the Geneva Convention, no combatant can be punished under civil law for any action taken prior to his capture. Subjecting Padilla to the Civil Justice system and incarceration in a civilian prison is a war crime and capital offense under the Geneva Convention.
John Walker Lindh avoided the military system on a technicality. Lindh had fought for the Taliban prior to 9-11, they had no evidence of actions taken between 9-11 and his capture a few weeks later that he participated as a combatant. So his actions were taken prior to the start of the conflict under the Geneva Conv.
And Padilla is not alone as an American Terrorst, the NYPD report out this week says 50 jihadi cells with over 1000 members are under surveillance in the US at this time.
Posted by unclesmrgol | August 17, 2007 10:50 AM
Po,
Your idea of a jury of peers is a joke. The courts have already ruled over and over that Christians don't need to be tried before a jury of Christians, Spanish speakers before a jury of Spanish speakers, etc. Under your rules, the jury would only be valid if comprised of Arabic-speaking Hispanics who were born in Brooklyn. Think about it...
What the courts have ruled upon is the need for the jury selection process to not select on such overt criteria. Both the defense and prosecution get input into the makeup of the jury.
It wasn't just his signature. Seven of his fingerprints were on the paper too, and the content of that paper certainly contributed to the jury decision as well.
Note that the government could not present bring charges for Padilla crimes determined by interrogation of Padilla while he was at Guantanamo, because the evidence related to those were obtained without Padilla being permitted to have attornies present -- which is why no charges relating to dirty bombs, etc. were lodged. The government used only the stuff obtained without Padilla's confession, and they had a slam-dunk. A real kangaroo court would have used the stuff obtained at Guantanamo as well, don't you think?
I disagree with the Captain. The 4th Circuit opinion makes it quite clear that indefinite military detention of a American combatant working for an enemy power at our border is permitted, provided that combatant is allowed to legally protest their detention within the military court system. This finding is consistent with the Geneva Convention for uniformed combatants (which Padilla certainly was NOT!). Earlier findings dating back to the Civil War make similar detentions of combatants in the employ of a foreign power found within our borders legal as well.
Posted by SFC MAC | August 17, 2007 11:40 AM
I disagree with the "due process" complaint.
I have absolutely no heartburn over yanking his ass into indefinite detention without Miranda Rights. Anyone who plots death and destruction in the United States, especially under the auspices of a sworn enemy, forfeits any expectation of rights. If you join forces against this country, you are a traitor and you’ve definitively renounced your citizenship.
Come to think of it, that qualifies 99.9% of the Democratic Party.
Posted by Jaded | August 17, 2007 12:20 PM
So the administration did not dot their i's and t's and kept a potential terrorist who is American cooling his heels, yeah not sure that bothers me at all.
Posted by Tom Holsinger | August 17, 2007 12:45 PM
TheFlyer is absolutely correct. Padilla was an unlawful combatant who merited detention and interrogation as such. When he had no more intelligence value he was transferred to the criminal justice system for trial on lesser charges whose defense would not endanger national security.
Howard Gilbert had a very good post on this point at the Volokh Conspiracy:
http://volokh.com/posts/1187293723.shtml#257721
"In Dec 2001, months before he was captured, the government obtained Padilla's enlistment papers with his name, signature, birtdate, and fingerprints. On the basis of this document his name was flagged and he was captured when he stepped off the plane. There was always an open and shut, can't lose criminal conviction available if all they wanted to do was throw Padilla himself in jail.
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."
Posted by Cain | August 17, 2007 4:34 PM
SFC MAC: "I disagree with the "due process" complaint.
I have absolutely no heartburn over yanking his ass into indefinite detention without Miranda Rights...."
Exactly right. It's rather easy for people to ramble on in this thread about "due process" and how "reprehensible" the administration acted. I'm curious how many of these same people would be chirping the praises of due process right after Washington DC is a smoking hole in the ground because Abdul needed a lawyer and Miranda rights read to him before the FBI could find out what he knows about the bomb that's about to go off. The Constitution should never be used as an invitation to suicide. This is a war after all.
Posted by Walter M. Clark | August 17, 2007 8:22 PM
Habeas Corpus? Suspended by Congress? Most Americans, and most others throughout the world, think Abraham Lincoln personified reasonable presidential practices during a time of war. He arbitrarily suspended Habeas Corpus all by his little ol' self and told the Supreme Court to stuff it when they complained. And that wasn't the only time he ignored the "vaunted" "Supreme" Court. GWB needs to bring up the now-approved actions of those who were President during wartime before him. Remember, the Supreme Court ruled that the incarceration without representation of the Japanese and Japanese-Americans during World War II was constitutional. Precedent for what? I have some suggestions.
Posted by Adjoran | August 18, 2007 12:27 AM
Monday morning quarterbacking.
It's easy to say Padilla should have been in the US criminal justice system after the case is over.
Not so easy when he was first apprehended. He was known to have been in contact with very dangerous people, as were his associates, and the possibility of gaining further information had to be foremost in consideration, given the circumstances.
The jury's acceptance of the evidence against him confirms the decision to consider him an enemy combatant. Although he was convicted under criminal law, his offense was clearly that of an enemy.
Besides, given his potential life sentence, how was Padilla harmed? His conditions will probably be virtually the same as a solitary confinement prisoner in the federal system - and a better diet, since we cater to Muslim criminals.