Jose Padilla is an American citizen with a long criminal record who converted to Islam in prison who was plucked from a civilian jail by President George W. Bush as basically a test case for his new legal theory, and held there for years on that theory that he was an enemy combatant not entitled to due process. Padilla was then transferred to a non-military criminal court after the 4th Circuit had upheld the legality of the detention and before the U.S. Supreme Court's pending review of the case could take place, causing the U.S. Supreme Court to find the case to be moot while upholding the 4th Circuit precedent. Despite various arguments made by his lawyers in the criminal case at trial and on appeal, and some right out of a John Grisham novel instances of weird behavior by the jury, Padilla was convicted of trying to join a murderous terrorist group (separate from the dubious dirty bomb allegations made to support his enemy combatant detention) in which it was not alleged that he personally was involved in any terrorist acts. On appeal, prosecutors won a determination that the seventeen year sentence that he received was too short.
Padilla brought a civil rights suit thereafter, alleging that he was unlawfully tortured while detained as an enemy combatant, while he, a U.S. citizen, was detained in a facility in the territorial United States in a place not under martial law. The trial court dismissed the suit and its ruling was affirmed by the United States Court of Appeals for the Fourth Circuit, which reasoned that even if all allegations of the civil rights claim were true and that Padilla was tortured in violation of his constitutional rights while being held as an enemy combatant, that the President and all persons who carry out executive branch orders when acting under color of a Congressional authorization to use military force are absolutely immune from civil liability or court orders providing for injunctive relief for any violation past, continuing, or in the imminent future, of a person's constitutional rights no matter how egregious, even if the constitutional right established is a clear violation of a well established constitutional right, and even if the litigation of the case does not in any way implicate a state secrets privilege.
The two precedents together basically stand for the proposition that the President may ignore the constitution to imprison and torture any U.S. citizen anywhere in the world, when acting under color of a Congressional grant of permission to use military force, subject only to the ever present possibility that his actions will get him impeached and removed from office.
It is also appropriate to recall that while President George W. Bush initiated this policy, that it is President Obama's administration that is now continuing to defend and assert the legally validity this exaggerated claim of Presidential authority, despite assertions on the campaign trail in 2008 that seemed to suggest that President Obama would reverse this policy.
It is fair to say that this is not the vision that the Founders embraced when the drafted the United States Constitution, and is also horrifically bad as a matter of policy.
Showing posts with label Jose Padilla. Show all posts
Showing posts with label Jose Padilla. Show all posts
26 January 2012
19 September 2011
11th Circuit Says Jose Padilla's 17 Year Sentence Too low.
Jose Padilla, a U.S. citizen who was detained as an "enemy combatant" and then transferred to the criminal justice system once a bad legal precedent was established, convicted in 2007, and sentenced to 17 years in prison for his associations with terrorist groups, in a criminal trial. A split decision of the 11th Circuit Court of Appeal just reversed that sentence on appeal as too lenient.
13 January 2010
Oral Arguments Held In Jose Padilla Appeal
Jose Padilla, a U.S. citizen detained without legal process as an "enemy combatant" in the United States as a would be bomber, and then transferred to the criminal justice system in Florida on terrorist conspiracy charges, where he was convicted and sentenced to seventeen years in prison. Jose Padilla appealed his conviction, and the prosecution likewise appealed, arguing that the sentence was too short.
Oral arguments were heard this week before the 11th Circuit Court of Appeals in Padilla's criminal case.
The 11th Circuit is arguably the most conservative in the nation on criminal justice issues, so the odds are not in Padilla's favor. But, this case is unique and a great deal of enemy combatant and terrorism related law has been decided since Padilla first challenge his enemy combatant detention, so the outcome is inherently hard to predict.
Meanwhile an appeal is pending (in the 9th Circuit) in a civil suit brought by Padilla in federal court in California against John Yoo, the legal mastermind of the enemy combatant doctrine. A preliminary ruling in the case that is being appealed held that if the facts alleged in the Complaint are true that Yoo violated Padilla's constitutional rights and had liability in damages for the violations.
Oral arguments were heard this week before the 11th Circuit Court of Appeals in Padilla's criminal case.
The 11th Circuit is arguably the most conservative in the nation on criminal justice issues, so the odds are not in Padilla's favor. But, this case is unique and a great deal of enemy combatant and terrorism related law has been decided since Padilla first challenge his enemy combatant detention, so the outcome is inherently hard to predict.
Meanwhile an appeal is pending (in the 9th Circuit) in a civil suit brought by Padilla in federal court in California against John Yoo, the legal mastermind of the enemy combatant doctrine. A preliminary ruling in the case that is being appealed held that if the facts alleged in the Complaint are true that Yoo violated Padilla's constitutional rights and had liability in damages for the violations.
24 June 2009
Justice Dept Covers Up Prosecutors' Misconduct
The Department of Justice is in charge of handling complaints of unethical conduct by federal prosecutors. About 30% of cases involve prosecutors hiding exculpatory evidence in criminal cases from defense attorneys, in violation of the U.S. Constitution. But, rather than prosecute cases it sits on them, releases no public information (not even at a statistical level after 2006), and the punishments imposed are frequently minor (like private reprimands) even in situations that experienced federal judges see as serious violations and follow up upon.
Most of the degradation in the Office of Professional Responsibility, in charge of these cases in the Justice Department, apparently happened during the administration of George W. Bush and it isn't clear how much change President Obama will bring to the situation (incumbent U.S. Attorney General Eric Holder took office February 3, 2009, Deputy Attorney General David W. Ogden was confirmed March 12, 2009, as was Associate Attorney General Thomas J. Perrelli). Eric Holder's public statements about Justice Department reform are encouraging. It appears, however that H. Marshall Jarrett has led the Office of Professional Responsibility since 1998 (presumably as a senior civil servant) and that he, in turn, reports to the Deputy Attorney General and the investigated attorney's "component head" with the results of the investigation in each case. In Jarrett's defense, the Bush administration was not always cooperative (citing the New York Times):
Then again, the fact that the investigation cited above started in 2005 and still hasn't concluded apparently, isn't impressive.
The evidence of weak attorney discipline at the Office of Professional Responsibility in the Justice Department, as reported by the American Bar Association Journal, suggests that the world's largest law office (i.e. the Justice Department) needs to hand off attorney regulation to disinterested third parties, in the same way that private firms are not permitted to judge their own lawyers. The truth of the matters is that professional and industry discipline agencies in almost every profession and industry tend towards regulatory capture, but most do take complaints of serious misconduct by individuals within the profession seriously.
The apparent failure of the Office of Professional Responsibility in the Justice Department is particular worrisome because some of the most culpable violations of civil liberties and incidents of torture were condoned by administration lawyers, like John Yoo, in ways that appear to violate professional ethics for lawyers in government service. The breakdown of professional ethics monitoring in the Justice Department may also color the rulings of judges who have first hand experience with these issues, in the Padilla v. Yoo civil lawsuit currently pending, where the complaint of Jose Padilla, who was detained as an enemy combatant and allegedly treated improperly while detained under the cover of a Department of Justice memoranda was held to state a claim for relief against a lawyer involved in writing those memoranda.
Most of the degradation in the Office of Professional Responsibility, in charge of these cases in the Justice Department, apparently happened during the administration of George W. Bush and it isn't clear how much change President Obama will bring to the situation (incumbent U.S. Attorney General Eric Holder took office February 3, 2009, Deputy Attorney General David W. Ogden was confirmed March 12, 2009, as was Associate Attorney General Thomas J. Perrelli). Eric Holder's public statements about Justice Department reform are encouraging. It appears, however that H. Marshall Jarrett has led the Office of Professional Responsibility since 1998 (presumably as a senior civil servant) and that he, in turn, reports to the Deputy Attorney General and the investigated attorney's "component head" with the results of the investigation in each case. In Jarrett's defense, the Bush administration was not always cooperative (citing the New York Times):
Jarrett sought to investigate DOJ approval for the National Security Agency's domestic wiretapping program in 2006, but requisite security clearances were denied. On February 22, 2008, Jarrett announced an investigation of DOJ legal memoranda by John Yoo, Jay Bybee, Steven Bradbury, and others justifying waterboarding and other harsh interrogation techniques.
Then again, the fact that the investigation cited above started in 2005 and still hasn't concluded apparently, isn't impressive.
The evidence of weak attorney discipline at the Office of Professional Responsibility in the Justice Department, as reported by the American Bar Association Journal, suggests that the world's largest law office (i.e. the Justice Department) needs to hand off attorney regulation to disinterested third parties, in the same way that private firms are not permitted to judge their own lawyers. The truth of the matters is that professional and industry discipline agencies in almost every profession and industry tend towards regulatory capture, but most do take complaints of serious misconduct by individuals within the profession seriously.
The apparent failure of the Office of Professional Responsibility in the Justice Department is particular worrisome because some of the most culpable violations of civil liberties and incidents of torture were condoned by administration lawyers, like John Yoo, in ways that appear to violate professional ethics for lawyers in government service. The breakdown of professional ethics monitoring in the Justice Department may also color the rulings of judges who have first hand experience with these issues, in the Padilla v. Yoo civil lawsuit currently pending, where the complaint of Jose Padilla, who was detained as an enemy combatant and allegedly treated improperly while detained under the cover of a Department of Justice memoranda was held to state a claim for relief against a lawyer involved in writing those memoranda.
14 June 2009
Civil Suit Against John Woo By Padilla Advances
A federal judge in California held that a civil lawsuit for damages (called a "Bivens suit") against John Woo, the Bush administration attorney whose legal opinions formed the basis for most of the decisions provided legal cover for much of the torture and denial of access to the courts to "enemy combatants," states a legally valid claim.
The core of the case comes down to the different levels of immunity that government lawyers have in different situations. Discretionary prosecutorial decision making and discretionary judicial decision making have absolute immunity. But, this decision, relying upon some already established precedents, set a different constitutional threshold for liability when a government attorney writes an opinion letter or memorandum that foreseeably denies someone their constitutional rights. In those cases, government employees are entitled to mere qualified immunity, the same level of protection that applies, for example, to law enforcement officers carrying out their duties.
The distinction is similar to the distinction between the liability of attorneys to adverse parties for confidential advice given by attorneys to their clients, for example, in litigation, which does not generally create personal liability for the lawyer (although there is a "crime-fraud" exception), and the liability of attorneys for their opinion letters on the validity of a transaction (e.g. the validity of a bond issue or a tax shelter), which is similar to (although not precisely the same as) a warranty.
Qualified immunity imposes liability when a clearly established constitutional right is violated, but protects the person claiming the immunity when the right protected violated a constitutional right which was not clearly established at the time.
The trial judge has held in Jose Padilla's case (a man declared an enemy combatant by the President and then detained without trial until the U.S. Supreme Court was about to decide his case when he was tried in a federal criminal court on criminal charges separate from those forming the basis for his detention), that John Yoo's actions (mostly a matter of public record and hence not subject to the state secrets doctrine) violated clearly established constitutional rights of Jose Padilla and that Padilla has stated a claim that the harm flowing from Yoo's rulings foreseeably harmed Padilla if the allegations of his lawsuit are true.
The trial judge's ruling gives special emphasis to the facts that Padilla's case involved an American citizen, that the acts in question took place on American soil, without specific Congressional authorization, as a result of the acts of a civilian, rather than a soldier, in a situation where there is no other remedy for the violations of his constitutional rights that Jose Padilla suffered.
Decisions to deny a government employee qualified immunity can be appealed immediately. Since the case is in the 9th Circuit Court of Appeals, and raises substantive issues different from those raised in prior habeas corpus litigation by Padilla, the 4th Circuit's pro-government enemy combatant precedents are not binding in this case.
Yoo is one of the most notorious of America's Bush Administration war criminals, and this suit opens the possibility that Yoo may be held responsible for the heinous harm he has done to the American constitution. He may also face disbarment for his acts, although it appears unlikely that criminal charges will be filed against him. Padilla's case is hardly a sure bet. But, few people deserve legal sanctions for his actions with in government service more than John Yoo. His acts for conscious and calculating efforts to undermine the law in a way that can be claimed for few others in the enemy combatant and torture saga. He was the legal architect of one of the gravest injustices of American history.
After it was declared that he was no longer an "enemy combatant," and being tried on criminal charges in Florida instead, Jose Padilla was convicted of charges that amount to a conviction for joining a terrorist group in August of 2007. Padilla was sentenced to 17 years, 4 months in prison on the criminal charges of conviction by the U.S. District Court on January 22, 2008. He is currently incarcerated in a maximum security prison in Colorado, while his case is on direct appeal to the conservative United States Court of Appeals for the 11th Circuit (the government has filed a cross-appeal as well).
The core of the case comes down to the different levels of immunity that government lawyers have in different situations. Discretionary prosecutorial decision making and discretionary judicial decision making have absolute immunity. But, this decision, relying upon some already established precedents, set a different constitutional threshold for liability when a government attorney writes an opinion letter or memorandum that foreseeably denies someone their constitutional rights. In those cases, government employees are entitled to mere qualified immunity, the same level of protection that applies, for example, to law enforcement officers carrying out their duties.
The distinction is similar to the distinction between the liability of attorneys to adverse parties for confidential advice given by attorneys to their clients, for example, in litigation, which does not generally create personal liability for the lawyer (although there is a "crime-fraud" exception), and the liability of attorneys for their opinion letters on the validity of a transaction (e.g. the validity of a bond issue or a tax shelter), which is similar to (although not precisely the same as) a warranty.
Qualified immunity imposes liability when a clearly established constitutional right is violated, but protects the person claiming the immunity when the right protected violated a constitutional right which was not clearly established at the time.
The trial judge has held in Jose Padilla's case (a man declared an enemy combatant by the President and then detained without trial until the U.S. Supreme Court was about to decide his case when he was tried in a federal criminal court on criminal charges separate from those forming the basis for his detention), that John Yoo's actions (mostly a matter of public record and hence not subject to the state secrets doctrine) violated clearly established constitutional rights of Jose Padilla and that Padilla has stated a claim that the harm flowing from Yoo's rulings foreseeably harmed Padilla if the allegations of his lawsuit are true.
The trial judge's ruling gives special emphasis to the facts that Padilla's case involved an American citizen, that the acts in question took place on American soil, without specific Congressional authorization, as a result of the acts of a civilian, rather than a soldier, in a situation where there is no other remedy for the violations of his constitutional rights that Jose Padilla suffered.
Decisions to deny a government employee qualified immunity can be appealed immediately. Since the case is in the 9th Circuit Court of Appeals, and raises substantive issues different from those raised in prior habeas corpus litigation by Padilla, the 4th Circuit's pro-government enemy combatant precedents are not binding in this case.
Yoo is one of the most notorious of America's Bush Administration war criminals, and this suit opens the possibility that Yoo may be held responsible for the heinous harm he has done to the American constitution. He may also face disbarment for his acts, although it appears unlikely that criminal charges will be filed against him. Padilla's case is hardly a sure bet. But, few people deserve legal sanctions for his actions with in government service more than John Yoo. His acts for conscious and calculating efforts to undermine the law in a way that can be claimed for few others in the enemy combatant and torture saga. He was the legal architect of one of the gravest injustices of American history.
After it was declared that he was no longer an "enemy combatant," and being tried on criminal charges in Florida instead, Jose Padilla was convicted of charges that amount to a conviction for joining a terrorist group in August of 2007. Padilla was sentenced to 17 years, 4 months in prison on the criminal charges of conviction by the U.S. District Court on January 22, 2008. He is currently incarcerated in a maximum security prison in Colorado, while his case is on direct appeal to the conservative United States Court of Appeals for the 11th Circuit (the government has filed a cross-appeal as well).
06 March 2009
Al-Marri Enemy Combatant Case Ends
The Al-Marri enemy combatant case is over, but the harm this case and the Jose Padilla case together did to the U.S. Constitution remains in U.S. law, probably indelibly for the foreseeable future. Together, these two cases, more than any others in the history of American jurisprudence, have impaired the right of average Americans to be free from incarceration without due process of law.
The judicial branch failed us when it had a chance to stop the gross abuse of Presidential power contrary to the U.S. Supreme Court's prior precedents that these cases represent. This was not for want of trying by some good judges. Padilla won his case before a federal court appellate panel in New York which was later ruled to lack jurisdiction by the U.S. Supreme Court (hence, vacating the ruling). Al-Marri won his case before a trial judge in a ruling on a motion, and then won by a 2-1 margin before federal appellate court panel that first heard his case on appeal, before losing in a 5-4 vote of the en banc United States Court of Appeal for the 4th Circuit -- all of those ruling are now vacated. The executive branch has seen partial defeats on multiple related issues (including the validity of the habeas corpus suspension in the Military Commission Act) before the U.S. Supreme Court.
The U.S. Supreme Court ruled as follows today:
From here.
Al-Marri, a U.S. citizen, was lawfully in the United States on a student visa, when he was arrested within the United States by law enforcement officers on federal criminal charges involving fraud. While incarcerated and facing criminal prosecution in a federal court, George W. Bush declared him an enemy combatant and detained him indefinitely in a military brig, on the basis of a "declaration" from a senior government official (which is heresay) which was in turn based upon other heresay and never subjected to an evidentiary hearing or test.
Al-Marri filed a petition for habeas corpus in federal district court. The matter was appealed to the 4th Circuit Court of Appeals where Al-Marri lost. Al-Marri sought review by the U.S. Supreme Court. Instead, President Obama cancelled the enemy combatant designation and transferred al-Marri back to the federal criminal justice system facing new charges.
Per SCOTUS Blog:
The U.S. Supreme Court's decision to vacate the 4th Circuit ruling prevents the 4th Circuit Al-Marri en banc decision from making further bad law (notably, the decision to vacate was made with government consent). But, the 4th Circuit ruled against U.S. citizen Jose Padilla on otherwise similar facts, after which Padilla was transferred to the criminal justice system in Florida, where he was convicted (that conviction is now on appeal), and in that case, the U.S. Supreme Court overruled a 4th Circuit decision to vacate its decision in that case which it felt had been obtained based upon misrepresentations by government lawyers in the case. By refusing to hear the Al-Marri case now, the U.S. Supreme Court had eliminated the most plausible means by which the Padilla precedent in the 4th Circuit could have been overruled.
Therefore, while it is good news that the bad precedent in the Al-Marri case has been vacated, the bad news is that the U.S. Supreme Court did not use Al-Marri's case to overturn the binding 4th Circuit Court of Appeals precedent that held that Jose Padilla's detention as an enemy combatant solely upon the say so of the President was legal.
Furthermore, the first time that the Padilla case arrived at the U.S. Supreme Court, it held that jurisdiction and venue in a habeas corpus petition is proper only in the state where the person is currently being detained. So, simply by virtue of detaining an alleged enemy combatant somewhere within the jurisdiction of the 4th Circuit Court of Appeals, a President can benefit from the 4th Circuit's binding precedent in the Padilla case, subject only to the argument that it has been implicitly overruled by subsequent U.S. Supreme Court decisions.
In short, it appears that the authority of a President to detain a person lawfully within the United States (including U.S. citizens), without trial, upon the basis of a hearsay within hearsay affidavit that the person is an enemy combatant, remains good law in the United States, at least within the limitations set forth in the 4th Circuit ruling in the Padilla case.
Jose Padilla and Al-Marri were the only known individuals detained as enemy combatants within the United States long enough for their cases to make it through the court system. Neither has received any direct remedy (even credit for time served) for the harm they suffered while detained as enemy combatants, and neither was released for any reason other than the grace of the sitting President. Padilla, however, may have received some leniency at sentencing in light of what he had already been through. Neither man, it appears are facing criminal charges in connection with matters they were charged with prior to being detained as enemy combatants. The matters described in the enemy combatant declaration were not brought up in the criminal trial of Jose Padilla.
It is not clear clear what evidence is implicated in the new Al-Marri criminal case. IIRC, the charges brought against him originally were dismissed with prejudice when he was detained as an enemy combatant. There are also statute of limitations, speedy trial, time served, fruit of the poisonous tree evidence, and other unusual issues present in the current criminal trial, although no issues of that type were sufficient to prevent the conviction at trial of Jose Padilla, on rather thin evidence.
Also, Al-Marri, unlike Padilla, does not have a long prior criminal record, so if he is convicted, the sentence pursuant to the sentencing guidelines is likely to be much shorter. However, unlike Jose Padilla, Al-Marri faces deportation after he serves his sentence if he is convicted, and due to the expiration of his student visa, if he is not convicted.
In the end, George W. Bush established that there is no timely judicial remedy for extra-judicial detention in the face of national security concerns, even for people lawfully within the U.S., and that the Congress is willing to go a long way to ratify Presidential action regarding detainees for fear of being called weak on terrorism. But, these episodes also established that there are large and powerful forces within the international and domestic legal and political communities that are extremely uncomfortable with this approach, so the policy never reached beyond these two test cases in the U.S., and the government was never willing to risk having the U.S. Supreme Court rule on the issue and potentially invalidate the policy.
(Popular fiction and some press reports, by the way, wrongly attribute these detentions by the President to the U.S.A. PATRIOT Act, enacted shortly after the 9-11 attacks, actually does address the issue of non-criminal detentions of suspected terrorists, but does so in a far more measured way that gives the President far less power.)
It also isn't at all obvious that the courts would have tolerated this enemy combatant policy if it had been used more widely, as the U.S. Supreme Court indicated in an usual written order accomanying the dismissal of the Padilla case and its refusal to vacate the 4th Circuit decision in that case.
It is not clear if this will be the last judicial word on the enemy combatant doctrine in our generation from U.S. Courts. While the habeas corpus petitions are moot, the issues could come up in the direct criminal appeal of the Jose Padilla criminal conviction (or a collateral attack on that conviction), in the Al-Marri criminal case, or in a civil rights lawsuit brought by either man to the extent that this is not barred by the Military Commissions Act which contains broad grants of immunity, on top of already broad sovereign immunity and state secrets doctrines. Further, the right of each man to bring a civil rights suit might be waived in connection with a plea bargain or negotiated resolution of a criminal appeal. Padilla's may be barred by the doctrines of res judicata or collateral estoppel in any civil suit brough by him by the 4th Circuit ruling in his habeas corpus case.
Congress could, of course, act to prohibit the President from detaining people lawfully within the U.S., absent from combat, and not accused of engaging in combat in the United States, like Padilla and Al-Marri. But, a similar statute already on the books was swept away in the face of arguments that the authorization for the use of military force (which was later enacted) permitted these detention, and that the President has the unilateral authority as a commander-in-chief, to do so.
The judicial branch failed us when it had a chance to stop the gross abuse of Presidential power contrary to the U.S. Supreme Court's prior precedents that these cases represent. This was not for want of trying by some good judges. Padilla won his case before a federal court appellate panel in New York which was later ruled to lack jurisdiction by the U.S. Supreme Court (hence, vacating the ruling). Al-Marri won his case before a trial judge in a ruling on a motion, and then won by a 2-1 margin before federal appellate court panel that first heard his case on appeal, before losing in a 5-4 vote of the en banc United States Court of Appeal for the 4th Circuit -- all of those ruling are now vacated. The executive branch has seen partial defeats on multiple related issues (including the validity of the habeas corpus suspension in the Military Commission Act) before the U.S. Supreme Court.
The U.S. Supreme Court ruled as follows today:
CERTIORARI -- SUMMARY DISPOSITION
08-368 AL-MARRI, ALI V. SPAGONE, DANIEL (08A755)
The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36
(1950).
From here.
Al-Marri, a U.S. citizen, was lawfully in the United States on a student visa, when he was arrested within the United States by law enforcement officers on federal criminal charges involving fraud. While incarcerated and facing criminal prosecution in a federal court, George W. Bush declared him an enemy combatant and detained him indefinitely in a military brig, on the basis of a "declaration" from a senior government official (which is heresay) which was in turn based upon other heresay and never subjected to an evidentiary hearing or test.
Al-Marri filed a petition for habeas corpus in federal district court. The matter was appealed to the 4th Circuit Court of Appeals where Al-Marri lost. Al-Marri sought review by the U.S. Supreme Court. Instead, President Obama cancelled the enemy combatant designation and transferred al-Marri back to the federal criminal justice system facing new charges.
Per SCOTUS Blog:
With Friday’s order on Al-Marri, he will soon be taken into federal court for an initial appearance, to have the charges read to him. A grand jury in Illinois on Feb. 26 charged him with two counts of providing “material support and resources” to the Al Qaeda terrorist network. The maximum penalty on each charge is 15 years in prison. One day after the charges were filed, they were made public and President Obama ordered Al-Marri’s release by the military. He has been held at the U.S. Navy brig in Charleston, S.C., for more than five years without any charges, military or civilian. He was arrested at his home in Peoria, Ill., where he was attending Bradley University. The government later shifted him into military custody, saying he had come to the U.S. to take part in terrorism activities with a “sleeper cell” of Al Qaeda operatives.
The U.S. Supreme Court's decision to vacate the 4th Circuit ruling prevents the 4th Circuit Al-Marri en banc decision from making further bad law (notably, the decision to vacate was made with government consent). But, the 4th Circuit ruled against U.S. citizen Jose Padilla on otherwise similar facts, after which Padilla was transferred to the criminal justice system in Florida, where he was convicted (that conviction is now on appeal), and in that case, the U.S. Supreme Court overruled a 4th Circuit decision to vacate its decision in that case which it felt had been obtained based upon misrepresentations by government lawyers in the case. By refusing to hear the Al-Marri case now, the U.S. Supreme Court had eliminated the most plausible means by which the Padilla precedent in the 4th Circuit could have been overruled.
Therefore, while it is good news that the bad precedent in the Al-Marri case has been vacated, the bad news is that the U.S. Supreme Court did not use Al-Marri's case to overturn the binding 4th Circuit Court of Appeals precedent that held that Jose Padilla's detention as an enemy combatant solely upon the say so of the President was legal.
Furthermore, the first time that the Padilla case arrived at the U.S. Supreme Court, it held that jurisdiction and venue in a habeas corpus petition is proper only in the state where the person is currently being detained. So, simply by virtue of detaining an alleged enemy combatant somewhere within the jurisdiction of the 4th Circuit Court of Appeals, a President can benefit from the 4th Circuit's binding precedent in the Padilla case, subject only to the argument that it has been implicitly overruled by subsequent U.S. Supreme Court decisions.
In short, it appears that the authority of a President to detain a person lawfully within the United States (including U.S. citizens), without trial, upon the basis of a hearsay within hearsay affidavit that the person is an enemy combatant, remains good law in the United States, at least within the limitations set forth in the 4th Circuit ruling in the Padilla case.
Jose Padilla and Al-Marri were the only known individuals detained as enemy combatants within the United States long enough for their cases to make it through the court system. Neither has received any direct remedy (even credit for time served) for the harm they suffered while detained as enemy combatants, and neither was released for any reason other than the grace of the sitting President. Padilla, however, may have received some leniency at sentencing in light of what he had already been through. Neither man, it appears are facing criminal charges in connection with matters they were charged with prior to being detained as enemy combatants. The matters described in the enemy combatant declaration were not brought up in the criminal trial of Jose Padilla.
It is not clear clear what evidence is implicated in the new Al-Marri criminal case. IIRC, the charges brought against him originally were dismissed with prejudice when he was detained as an enemy combatant. There are also statute of limitations, speedy trial, time served, fruit of the poisonous tree evidence, and other unusual issues present in the current criminal trial, although no issues of that type were sufficient to prevent the conviction at trial of Jose Padilla, on rather thin evidence.
Also, Al-Marri, unlike Padilla, does not have a long prior criminal record, so if he is convicted, the sentence pursuant to the sentencing guidelines is likely to be much shorter. However, unlike Jose Padilla, Al-Marri faces deportation after he serves his sentence if he is convicted, and due to the expiration of his student visa, if he is not convicted.
In the end, George W. Bush established that there is no timely judicial remedy for extra-judicial detention in the face of national security concerns, even for people lawfully within the U.S., and that the Congress is willing to go a long way to ratify Presidential action regarding detainees for fear of being called weak on terrorism. But, these episodes also established that there are large and powerful forces within the international and domestic legal and political communities that are extremely uncomfortable with this approach, so the policy never reached beyond these two test cases in the U.S., and the government was never willing to risk having the U.S. Supreme Court rule on the issue and potentially invalidate the policy.
(Popular fiction and some press reports, by the way, wrongly attribute these detentions by the President to the U.S.A. PATRIOT Act, enacted shortly after the 9-11 attacks, actually does address the issue of non-criminal detentions of suspected terrorists, but does so in a far more measured way that gives the President far less power.)
It also isn't at all obvious that the courts would have tolerated this enemy combatant policy if it had been used more widely, as the U.S. Supreme Court indicated in an usual written order accomanying the dismissal of the Padilla case and its refusal to vacate the 4th Circuit decision in that case.
It is not clear if this will be the last judicial word on the enemy combatant doctrine in our generation from U.S. Courts. While the habeas corpus petitions are moot, the issues could come up in the direct criminal appeal of the Jose Padilla criminal conviction (or a collateral attack on that conviction), in the Al-Marri criminal case, or in a civil rights lawsuit brought by either man to the extent that this is not barred by the Military Commissions Act which contains broad grants of immunity, on top of already broad sovereign immunity and state secrets doctrines. Further, the right of each man to bring a civil rights suit might be waived in connection with a plea bargain or negotiated resolution of a criminal appeal. Padilla's may be barred by the doctrines of res judicata or collateral estoppel in any civil suit brough by him by the 4th Circuit ruling in his habeas corpus case.
Congress could, of course, act to prohibit the President from detaining people lawfully within the U.S., absent from combat, and not accused of engaging in combat in the United States, like Padilla and Al-Marri. But, a similar statute already on the books was swept away in the face of arguments that the authorization for the use of military force (which was later enacted) permitted these detention, and that the President has the unilateral authority as a commander-in-chief, to do so.
15 July 2008
Mixed Result For Al-Marri In En Banc Review Ruling
There have been just two people detained as enemy combatants in the United States.
One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.
The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.
The controlling 5-4 per curiam ruling in his case states:
Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.
The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.
Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.
The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:
In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.
This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.
One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.
The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.
The controlling 5-4 per curiam ruling in his case states:
PER CURIAM:
Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.
*We deny the Government’s motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri’s habeas petition.
Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.
The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.
Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.
The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:
The general rule, therefore, is that al-Marri would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him. But, if the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, then alternatives should be considered and employed. Given the grave national security concerns in matters such as this, and that the Rapp Declaration references not only al-Marri’s activities in this country but also those he engaged in abroad prior to his entry here, the Rapp Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are when the government has not even been required to demonstrate to the district court why it cannot or should not be required to produce, even for ex parte examination, any of the supporting evidence relied upon by Rapp to justify al-Marri’s detention. Here, the government has made no showing that "[h]earsay . . . [needs] to be accepted as the most reliable available evidence from the [g]overnment" or that the "exigencies of the circumstances . . . demand . . . [that the] enemy combatant proceeding[ ] . . . be [otherwise] tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip op. at 64-65 ("Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.")
In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.
This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.
17 August 2007
Jose Padilla Convicted On All Counts
Jose Padilla was convicted on all counts by a Miami jury after brief deliberations yesterday. He faces life in prison on charges that he conspired with a terrorist group to commit murder. Sentencing is set for early Decemeber. The guideline sentence is, at the very least, very long, and quite possibly life in prison. It remains to be seen if the judge will consider the uncharged conduct alleged by the government that constituted a basis for his enemy combatant detention. U.S. law permits acquitted and uncharged conduct to be considered by a judge at sentencing, so long as consideration of it does not increase the maximum sentence for the offense.
His co-defendants have planned to appeal, I suspect that he will as well. The strongest argument on appeal is probably that a conspiracy to murder charge requires more proof of either an agreement to conduct murder, or an attempted or completed murder arising from the conspiracy than was shown at trial and proved beyond a reasonable doubt.
An appeal in one of the most conservative court of appeals circuits in the country has an uncertain prospect of success.
His co-defendants have planned to appeal, I suspect that he will as well. The strongest argument on appeal is probably that a conspiracy to murder charge requires more proof of either an agreement to conduct murder, or an attempted or completed murder arising from the conspiracy than was shown at trial and proved beyond a reasonable doubt.
An appeal in one of the most conservative court of appeals circuits in the country has an uncertain prospect of success.
01 August 2007
Padilla Trial Likely Over Next Week
The trial of Jose Padilla and his two co-defendants will likely be over next week, with the jury then left to deliberate as long as necessary. Padilla will call no witnesses of his own and apparently doesn't plan to testify on his own behalf. His co-defendants have called a number of witnesses.
This leaves the defense to argue in closing argument that the case was not proved beyond a reasonable doubt. This is an easier task for Padilla than for most defendants, as the evidence against him is thin, and he benefits in part from being largely unmentioned in a trial that has revolved in both the prosecution and defense cases against the other people before the jury. By not testifying or offering evidence, he also avoids opening the door to additional evidence that could support a cas against him. But, not explaining yourself always carries risk. I'm not sure I'd be gutsy enough to take that approach.
Jury deliberations could be extended, given the length of the trial.
This leaves the defense to argue in closing argument that the case was not proved beyond a reasonable doubt. This is an easier task for Padilla than for most defendants, as the evidence against him is thin, and he benefits in part from being largely unmentioned in a trial that has revolved in both the prosecution and defense cases against the other people before the jury. By not testifying or offering evidence, he also avoids opening the door to additional evidence that could support a cas against him. But, not explaining yourself always carries risk. I'm not sure I'd be gutsy enough to take that approach.
Jury deliberations could be extended, given the length of the trial.
13 July 2007
Jose Padilla Prosecution Rests
From the AP:
Keep in mind that in July 2000, al-Qaida and Osama bin Laden were names known only to national security specialists, the United States was not contemplating military involvement in Afghanistan which was embroiled in a civil war that had almost been won by the Taliban, and Bill Clinton was President.
Prosecutors rested their case Friday after nine weeks, 22 witnesses and dozens of FBI wiretap intercepts played at trial, most of them in Arabic with written translations for jurors. Defense lawyers for Padilla and his two co-defendants begin presenting their case next week. . . .
Padilla's voice was heard on only seven intercepts, a tiny fraction of the 300,000 collected by the FBI during the nearly decade-long investigation.
Padilla was never linked to any specific acts of terrorism or murder and, unlike his co-defendants, he was not accused of using purported code words like "tourism" for "jihad" or "eggplant" for "rocket-propelled grenade." . . .
The key to the case against Padilla . . . is how much weight jurors give to the five-page "mujahedeen data form" he allegedly filled out in July 2000 to attend an al-Qaida training camp in Afghanistan. Seven of Padilla's fingerprints are on the form, which was recovered by the CIA in Afghanistan in December 2001. . . .
The form also serves to link Padilla co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi, both 45, to al-Qaida. Most of the other evidence and wiretap intercepts concern actions Hassoun and Jayyousi supposedly took to benefit Islamic extremists in global hotspots such as Chechnya, Somalia, Kosovo and Lebanon.
There's little evidence linking any of the three to specific acts of violence but there are ties to groups involved in Islamic jihad. For example, an associate of Jayyousi's was killed in fighting in Chechnya in 1995 and Jayyousi once got a fax signed by al-Qaida leader Osama bin Laden. . . .
The three face life in prison if convicted on all charges, which include providing material support to terrorists and conspiracy to murder, kidnap and maim people overseas.
The defense says its case will focus on expert witnesses who can provide an alternate view of history, Islamic principles and global politics for the jury. The trial is scheduled to continue into August. . . .
Padilla's attorneys have said he went to Egypt in 1998 to study Islam more intently and hoped to become an imam. Merely traveling to places like Pakistan, they say, isn't proof of ties to terrorism.
Keep in mind that in July 2000, al-Qaida and Osama bin Laden were names known only to national security specialists, the United States was not contemplating military involvement in Afghanistan which was embroiled in a civil war that had almost been won by the Taliban, and Bill Clinton was President.
09 July 2007
The long Padilla trial
The trial of Jose Padilla, highlighted today in the New York Times, which provides more context than most coverage, has been going on a long time, nine weeks so far, with the prosecution still trying to make its case and weeks to go.
While many high profile trials do last a long time, this is not typical. Two-thirds of federal criminal jury trials in Colorado last three days or less. Only about two out of 37 federal criminal jury trials in Colorado, in the most recent year for which numbers are available, last over four weeks. Nationwide, only 2% of federal criminal jury trials last more than four weeks.
This doesn't mean that Padilla can expect an acquittal, but it does indicate just how tenuous the government's case is here. The more you have to say to prove your case, the less likely it is that it is a solid one.
While many high profile trials do last a long time, this is not typical. Two-thirds of federal criminal jury trials in Colorado last three days or less. Only about two out of 37 federal criminal jury trials in Colorado, in the most recent year for which numbers are available, last over four weeks. Nationwide, only 2% of federal criminal jury trials last more than four weeks.
This doesn't mean that Padilla can expect an acquittal, but it does indicate just how tenuous the government's case is here. The more you have to say to prove your case, the less likely it is that it is a solid one.
04 July 2007
Padilla Weirdness
The jury in Jose Padilla's criminal case is starting to act like the jury in Grisham's Runaway Jury.
11 October 2006
Jose Padilla Was Tortured
Jose Padilla (a U.S. citizen arrested unarmed in the Chicago O'Hare airport as a material witness and transferred to miltiary custody as an enemy combatant, while incarcerated and under the jurisdiction of a U.S. federal court) was subjected to conditions in captivity in a U.S. military prison set forth in a motion in his current trial on support for terrorism charges, some of which have been dismissed.
His argument is basically that the government has already punished him so severely and improperly for no proven reason, that any criminal prosecution is now out of line.
Extreme isolation, sleep deprivation, stress positions for hours, games with personal grooming, a chilled cell, lies, threats, being cut with a knife and having alcohol poured in his wounds, being shaken by interrogators, being involuntarily administered mind altering drugs, which taken together have permanently harmed him psychologically and physically are among the conditions he endured.
Simply put, the Naval Brig makes SuperMax look like kids gloves, and clearly violated both the U.S. Constitution and the Geneva Conventions. His captors (immediate and indirect) were war criminals whom the U.S. Congress and the President have just permanently released from any criminal or civil liability for their crimes, with the help of Colorado's Republican delegation, and Ken Salazar and John Salazar. The most evil people in Jose Padilla's saga are not before any court and never will be.
FOOTNOTE: "In two additional motions, the lawyers argue the case should be dismissed because the government took too much time between arresting Padilla and charging him."
The delay motions could present an easy out that would allow the trial court judge to avoid the merits of the outrageous conduct motion. The outrageous conduct motion also presents a much more difficult fact pattern for the U.S. Supreme Court to dismiss than the antiseptic government affidavits they'd faced in the previous two Padilla petitions -- this forces them to far more squarely confront the issue of torture by U.S. officials than ever before, in a context that doesn't involve punishment of a U.S. government employee. This appealable issue will hang over the government's case for the rest of the trial, even if the motion is denied. One could imagine, perhaps, a plea deal to "time served" for Padilla as a compromise.
Hamdan's JAG lawyer who won for Hamdan in the U.S. Supreme Court, meanwhile, has been drummed out of the military, while Padilla's war criminal jailer has been promoted. In the Bush Administration, evil is rewarded, while good is punished.
His argument is basically that the government has already punished him so severely and improperly for no proven reason, that any criminal prosecution is now out of line.
Extreme isolation, sleep deprivation, stress positions for hours, games with personal grooming, a chilled cell, lies, threats, being cut with a knife and having alcohol poured in his wounds, being shaken by interrogators, being involuntarily administered mind altering drugs, which taken together have permanently harmed him psychologically and physically are among the conditions he endured.
Simply put, the Naval Brig makes SuperMax look like kids gloves, and clearly violated both the U.S. Constitution and the Geneva Conventions. His captors (immediate and indirect) were war criminals whom the U.S. Congress and the President have just permanently released from any criminal or civil liability for their crimes, with the help of Colorado's Republican delegation, and Ken Salazar and John Salazar. The most evil people in Jose Padilla's saga are not before any court and never will be.
FOOTNOTE: "In two additional motions, the lawyers argue the case should be dismissed because the government took too much time between arresting Padilla and charging him."
The delay motions could present an easy out that would allow the trial court judge to avoid the merits of the outrageous conduct motion. The outrageous conduct motion also presents a much more difficult fact pattern for the U.S. Supreme Court to dismiss than the antiseptic government affidavits they'd faced in the previous two Padilla petitions -- this forces them to far more squarely confront the issue of torture by U.S. officials than ever before, in a context that doesn't involve punishment of a U.S. government employee. This appealable issue will hang over the government's case for the rest of the trial, even if the motion is denied. One could imagine, perhaps, a plea deal to "time served" for Padilla as a compromise.
Hamdan's JAG lawyer who won for Hamdan in the U.S. Supreme Court, meanwhile, has been drummed out of the military, while Padilla's war criminal jailer has been promoted. In the Bush Administration, evil is rewarded, while good is punished.
21 August 2006
Conspiracy To Murder Charge v. Padilla Dismissed
One of three counts in an indictment against Jose Padilla, who was detained for years as an enemy combatant, has been dismissed on the grounds that the other counts already addressed the charges made. The "dismissed count charged conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1)."
A local law blogger says (emphasis in quoted material and original source):
Thus, while initially facing four charges in three counts, Padilla now faces two. It isn't at all obvious to me why this is not one count. It also isn't at all obvious why the judge chose Count I, rather than Count II or Count III to throw out. One suspsects it is because the judge previously noted that the indictment is "very light on facts," and didn't actually allege an effort to murder, maim or kidnap specific foreign persons, just support for a terrorist group generally.
It looks from the order like the most serious charge carried a sentence of 15 years in prison, down from a possible life sentence under Count I.
While it won't likely come up until sentencing, the other issue looming over any sentence is how much credit Padilla gets for time served. Clearly, he gets credit for the period from the time he arrived in Florida to the time of trial. It is unclear if he should also get credit for the time he was detained as an enemy combatant. The fact that being an "enemy combatant" and being a part of a terrorist "conspiracy" sound very similar, make it a plausible argument which is unprecedented only because, to my knowledge, no one has ever been held as an enemy combatant and then charged in the civilian criminal justice system with a crime.
A local law blogger says (emphasis in quoted material and original source):
Judge Cooke explained that because "in Counts I, II, and III, the government alleged one and only one conspiracy, with one and only one purpose and object for each of the conspiracy counts," Count I is multiplicitous and must be dismissed. . . . Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties . . . . An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement. . . . In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. . . . Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section.The full text of the order is here.
Thus, while initially facing four charges in three counts, Padilla now faces two. It isn't at all obvious to me why this is not one count. It also isn't at all obvious why the judge chose Count I, rather than Count II or Count III to throw out. One suspsects it is because the judge previously noted that the indictment is "very light on facts," and didn't actually allege an effort to murder, maim or kidnap specific foreign persons, just support for a terrorist group generally.
It looks from the order like the most serious charge carried a sentence of 15 years in prison, down from a possible life sentence under Count I.
While it won't likely come up until sentencing, the other issue looming over any sentence is how much credit Padilla gets for time served. Clearly, he gets credit for the period from the time he arrived in Florida to the time of trial. It is unclear if he should also get credit for the time he was detained as an enemy combatant. The fact that being an "enemy combatant" and being a part of a terrorist "conspiracy" sound very similar, make it a plausible argument which is unprecedented only because, to my knowledge, no one has ever been held as an enemy combatant and then charged in the civilian criminal justice system with a crime.
03 August 2006
Jose Padilla Prosecution Stumbles.
Jose Padilla has already made one giant step. The risk of going to the U.S. Supreme Court convinced the Bush Administration to stop treating him as an "enemy combatant" and to start treating him, instead, like a criminal defendant in a Miami, Florida federal terrorism prosecution.
The Miami Herald reports that:
There are 230 wiretap transcripts spanning 1993-2001 that form a basis for the case. Padilla's attorney wants a separate trial, so that only evidence relevant to the case against Padilla himself, who appears to be a minor player, at best, in the alleged conspiracy, goes before the jury.
It is also important to keep in mind that until a number of days after September 11, 2001, the United States was not at war with the Taliban, which was pretty close to being the legitimate government of Afghanistan at the time. Indeed, before the U.S. engaged the Taliban militarily in Afghanistan, it communicated with the regime through diplomatic channels.
In the fall of 2000, what Padilla was doing, looks a lot like what the men of the Abraham Lincoln Brigade did in the Spanish Civil War, go off and fight in a foreign war for a side they felt was just, and history largely agrees with them (they fought the fascists). They returned home a heros, rather than being prosecuted for their deeds, although most "were harassed or forced out of their jobs by the FBI" in the 1950s during the red scare, because they had used violent force to support communism, albeit against fascism.
No one claims that Padilla ever engaged U.S. troops or their allies in combat, or that he ever actual carried out any terrorist plots. The government claimed that he attempted to carry out one plot which was allegedly in progress when he returned to the U.S., although the plot was not actually the dirty bomb plot claimed, it was an arson campaign. But, the years he has spent incarcerated, first as an enemy combatant and now awaiting trial, approximate the kind of sentence he might receive had he been convicted of those charges, and any prosecution on those charges in now hopeless botched based on the administration's illegal application of its "enemy combatant" theory to this case far from any battlefield.
Hat Tip to How Appealing.
The Miami Herald reports that:
[N]ow a federal judge says the case against him appears ``very light on facts.''
In the last week, U.S. District Judge Marcia Cooke ordered prosecutors -- for the second time -- to provide more details to make their case against Padilla and codefendants Adham Amin Hassoun and Kifah Wael Jayyousi, accused of being part of a North American terrorist cell that supported Islamic jihad abroad. . . .
Padilla's lawyers, in court papers, argue their client's
''voice is heard on only eight brief conversations'' and ''not heard on any of the intercepts'' regarding alleged violent activities abroad. They also note that the other defendants -- including Hassoun, the alleged ringleader from Sunrise -- only mentioned Padilla 20 other times. . . .
According to the indictment, on July 24, 2000, Padilla 'filled out a `Mujahadeen Data Form' in preparation for violent jihad training in Afghanistan.''
It also claimed that on Sept. 3, 2000, Hassoun called another alleged co-conspirator in Egypt to provide financing for the travel and training of Padilla. He told Hassoun that Padilla ''entered into the area of Osama,'' a reference to al Qaeda leader Osama bin Laden, who was being harbored by the Taliban in Afghanistan.
There are 230 wiretap transcripts spanning 1993-2001 that form a basis for the case. Padilla's attorney wants a separate trial, so that only evidence relevant to the case against Padilla himself, who appears to be a minor player, at best, in the alleged conspiracy, goes before the jury.
It is also important to keep in mind that until a number of days after September 11, 2001, the United States was not at war with the Taliban, which was pretty close to being the legitimate government of Afghanistan at the time. Indeed, before the U.S. engaged the Taliban militarily in Afghanistan, it communicated with the regime through diplomatic channels.
In the fall of 2000, what Padilla was doing, looks a lot like what the men of the Abraham Lincoln Brigade did in the Spanish Civil War, go off and fight in a foreign war for a side they felt was just, and history largely agrees with them (they fought the fascists). They returned home a heros, rather than being prosecuted for their deeds, although most "were harassed or forced out of their jobs by the FBI" in the 1950s during the red scare, because they had used violent force to support communism, albeit against fascism.
No one claims that Padilla ever engaged U.S. troops or their allies in combat, or that he ever actual carried out any terrorist plots. The government claimed that he attempted to carry out one plot which was allegedly in progress when he returned to the U.S., although the plot was not actually the dirty bomb plot claimed, it was an arson campaign. But, the years he has spent incarcerated, first as an enemy combatant and now awaiting trial, approximate the kind of sentence he might receive had he been convicted of those charges, and any prosecution on those charges in now hopeless botched based on the administration's illegal application of its "enemy combatant" theory to this case far from any battlefield.
Hat Tip to How Appealing.
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