Tom Holsinger emails a Reuters story that the 2nd Dist. Court of Appeals has ordered terror suspect Padilla freed.

While I’m not a lawyer, it seemed odd that a U.S. citizen would be held as an enemy combatant, rather than as a suspect charged with sedition.

23 thoughts on “Padilla”

  1. From all the dirt they’ve got on him according to the reports that surfaced after he was caught, my guess is that they have more than enough evidence to convict him with treason.

    One other thing to keep in mind is that Padilla is basically cannon fodder. The biggest boss of the US al-Qaeda that’s been identified to date is Ali Saleh al-Marri, a Qatari who is also an illegal combatant. I don’t have too many qualms with Padilla being sprung loose to face charges, but I think that we are well within our rights to detain al-Marri, a non-citizen who has come to our shores solely for the purpose of leading a war against us.

  2. Well, “freed” from military detention within 30 days (although I’m sure that this will get fast-tracked to the Supreme Court). He can still be charged or held as a material witness. In my opinion, a great day for the rule of law and the separation of powers.

  3. It may be “odd”, but there is precedent in the Quirin Supreme Court case from WWII ( which the Second Circuit did a rather disingenuous job of distinguishing IMO.

  4. The Ninth Circuit just handed down this: Appeals court: Guantanamo prisoners should have access to lawyers, U.S. court system. It might be overturned/modified on appeal to the Supreme Court.

    That said, there is an obvious need for defining some clear rules for dealing with cases like Padilla as well as the Guantanamo cases. Frankly, some appropriate status and safeguard of the rights of Guantanamo detainees has got to be worked out under a system where they have a chance for a fair hearing but do serious jail time if they are determined to be an ongoing threat. The old rules (Geneva Convention, etc.) just won’t work.

    I’m also very concerned about lack of checks on abuses of government power. The case of Chaplain James Yee – originally said to risk the death penalty for high treason – has now been downgraded to adultery and possession of pornography. We have to be extremely vigilant and skeptical towards abuses of state power.

  5. The Quirin defendants got a military tribunal and top-flight defense lawyers, plus an unsuccessful appeal to the Supreme Court.

    And Padilla got? Well, nothing! The Administrations’ policy is a revival of the practice of lettres-cachet, and the name alone shows how foreign the concept is to the Anglo-American legal system.

  6. Andrew, your comments are irrelevant as the Supreme Court then decided in Quirin that the saboteurs weren’t entitled to access to the civil courts.

    Gabriel, you don’t establish why the Geneva Convention rules “don’t work”.

    What doesn’t “work” is this bizarre idea that enemy combatants must be treated solely as criminal defendants. The idea that enemy soldiers in a war must be released to return to war if the government can’t meet the high standards of civil society’s methods of dealing with domestic crime is ludicrous.

  7. Robin, you’re missing my point, and probably Gabriel Gonzalez’s, which is related. Quirin et. al. didn’t have access to the civilian courts but they did receive a military trial according to the laws of war, where they were convicted. The problem here is that Padilla isn’t being tried according to the laws of war, or any laws at all.

    Your argument is simple: the Bush Administration has the right to incarcerate incommunicado anyone on the uncontestable determination of the Executive that the victim is an “enemy combatant”. Such indefinite detention is the justice of tyrants.

  8. Actually Andrew, the problem is that you don’t understand the context of the case yourself as it undermines your “point”. The Quirin “trial” was for their execution as illegal combatants, not their detention.

    As I’ve said, requiring the detention of enemy combatants to meet civil standards of criminal justice is ludicrous.

  9. Tom Holsinger sent me the following:

    Padilla was not charged with any criminal offense. He was simply being held as an enemy combatant aka POW, albeit an unlawful combatant. He has no more rights than a Confederate POW, or filibusterer coming over from Canada, had during the Civil War.

    Vermont was “outside a zone of actual combat” in 1864 when the St. Albans raiders came over from Canada. The federal government then could not have held those guys under military jurisdiction under the 2nd Circuit decision had it caught them crossing the border before they acquired weapons in Vermont to attack the town with.

    I repeat that the 2nd Circuit’s ruling ignores 9/11. References to “a zone of actual combat” are inane in this conflict. This seems to be a paradigm shift issue – those on the wrong side will never understand.

    I can see already what the Solicitor General is going to do to the 2nd Federal Circuit Court of Appeals opinion in front of the Supremes.

    Envision a wall with nothing but picture-posters of the WTC from impact to collapse with lots of scenes of the jumpers; pictures of the collapsed wing of Pentagon; pictures of a hole in a Pennsylvania field; pictures of the hole in the side of the USS Cole with the human remains still in the structure; pictures of our African Embassies after the car bombings; and an over arching world map of where all these attacks happened.

    Then see exactly how the sanity of the presiding judges of the 2nd Circuit can be challenged by a skilled Solicitor General by asking the question of how those judged decided what constituted “a zone of actual conflict?” given those exhibits.

  10. Robin

    The Geneva Convention was meant to apply to a classical war with a definite end. This war will by definition never end or at least not for a very, very long time. As a practical matter, the detainees can therefore never be released under Geneva Convention rules as ordinarily understood either because the hostilities have not ended or because their automatic release under any treaty provision doesn’t solve the problem that they will continue to pose a threat. Treatment of prisoners could be regarded as a “criminal-like” problem, even if the war itself is not treated as a criminal action.

    I think at a minimum that means some defined legal procedures for guaranteeing some minimal due process and “sentencing” to ensure minimal standards of fairness. I don’t think that we as a society want to hold people forever without some guaranty of legal review. It may be primarily for the benefit of a small number of detainees, who were not true jihadists, were exceedingly young, and were deemed no longer to present a security risk. It may also result in taking most of these people out of circulation permanently (ie, life imprisonment).

    Of course, you can simply declare the Geneva Convention applicable, and say all of these people will be held forever, or at least indefinitely on our say-so. It would be nice if the system could be structured to provide some procedural safeguards that we would both feel comfortable with and comfortable about.

  11. Actually, the Geneva Convention says that illegal combatants have no rights at all. You can do more than detain them – you can hold immediate drumhead trials, and shoot them. This protects the critical military/civilian distinction that is at the heart of many of the conventions. Make that distinction meaningless, and you undermine it in all aspects.

    Drumhead trials for people captured in Afghanistan and other war zones would be just fine by me. So no, I haven’t the slightest issue with Camp X-Ray prisoners being held as long as anyone likes, or executed, or anything else they want to do to them short of physical torture. And my problem with the latter isn’t a legal issue, it’s a moral and practical one.

    Padila, as an American citizen apprehended on U.S. territory, presents a more difficult case. Trent, let’s agree that the battlefield IS everywhere. So, how do we ensure that only bad guys are designated as enemy combatants, and not just folks someone doesn’t like?

    Somewhere in this process, we need a stable set of answers and tests for that question.

    While I approve of the reasoning in Quirin, my opinion on the Padilla case kind of sidesteps it. I say if they have the goods on him for treason, produce them and execute him already. It would be a salutary reminder that is still such a thing as treason, and that it means something. If they have the goods on him for sedition, pursue that to its fullest extent. For the same reason.

    At the end of the day, a good outcome and answer must do 3 things:

    [1] Give us a set of reasonable tests that allow designation of enemy combatants, without creating a cudgel that can be used against any American at any time.

    [2] Establish a clear line for sedition/ treason, and make it clear that there are real and serious penalties for crossing it.

    [3] Enahnce citizens’ faith that the American justice system can protect both their rights AND their security against the threat of terrorism.

    Regardless of what happens, however, the American government will still retain options. For instance, they could have just grabbed Padilla abroad and transferred him to Gitmo, or shot him there in a take down raid. Which will become standard procedure if the conclusion is that waiting for people to return to America means being forced to choose between civilian trials that demand revelation of sensitive intelligence sources (as Z.M.’s did) and burdens of proof inappropriate to (and heretofore foreign to) wartime situations, or letting a known hostile walk into America to plan or participate in the next 9/11.

    Personally, I hope the choice never comes to that.

  12. Robin, how can the Quirin decision that allowed execution of (most of) the defendants after a trial possibly be used to justify indefinite detention of Padilla incommunicado, without a trial? If the government has any real evidence against Padilla—which they haven’t had to produce—by all means, present it to a tribunal, let him defend himself as best he can, and mete out appropriate punishment. (The failure to provide any forum for prisoners to deny that they were illegal combatants is itself highly problematic.)

    I have not suggested that Padilla’s detention be treated in the same way as civilian arrest. What I have suggested, and, frankly, what I thought would have been clear to any citizen who valued a government of laws and not of men, was that permanent unreviewable incommunicado detention at His Majesty the President’s Pleasure is repugnant to the American system of justice, 9/11 or no.

    Even one of the architects of the Patriot Act agrees [LINK]:

    Viet Dinh, who until May headed up the Justice Department’s Office of Legal Policy, said in a series of recent speeches and in an interview with the Los Angeles Times that he thinks the government’s detention of Padilla is flawed and unlikely to survive court review.

    Somehow, I deeply doubt that you would allow President Gore, President Dean, or President Hillary Clinton this despot’s privilege. What you would say after Communist terrorists set the Reichstag Fire, I dread to imagine.

  13. >Padila, as an American citizen apprehended on
    >U.S. territory, presents a more difficult case.
    >Trent, let’s agree that the battlefield IS
    >everywhere. So, how do we ensure that only bad
    >guys are designated as enemy combatants, and not
    >just folks someone doesn’t like.


    Lincoln detained without trial or representation thousands of American citizens and formally suspended the writ of Habeas Corpus (sp?) by Presidential decree doing it. So historically the President has the authority to hold people like Padilla in time of war indefinitely.

    The over sight and review isn’t judicial in this case. It is political, the Congress’ reaction and the President’s reelection to be specific.

    Tom Holsinger has since read the majority opinion of the 2nd Circuit Decision. Apparently the statutory law changed the Civil war and WW2 era case law on Americans as unlawful combatants when Congress in 1971 passed 18 U.S.C. 4001(a). They were trying to “make nice” for the detention of Japanese Americans in WW2 and the legislative record showed clearly that both proponents and opponents of the legislation knew that it would indeed have the legal effect the 2nd Circuit is enforcing.

    The key here is whether Congress’ 9/11 ‘use of force’ resolution is sufficient legislative enabling authority to overcome the statutory effect of overcoming the Congressional legislation.

    If worse comes to worse, Bush can simply ask the Congress to pass a specific authorizing joint resolution that would meet the 2nd Circuit’s statutory objections and keep Padilla in custody if the Supremes uphold the decision.

    Tom also passed on that he had a general impression of the two judge panel majority opinion that the 2nd Circuit judges think that the particular Congress that passed the 1971 statutory legislation was doing mindless political grandstanding and couldn’t be trusted to zip up its collective pants after urinating.

    See this link for Eugine Volokh’s comments:

  14. Andrew,

    How can Quirin do what I claim? Easy. By its terms. I quote from the case: “By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” Emphasis added by me.

    I concede that it was unfair of me to actually like … read the case.

    Trent, Eugene put an even better comment at this link:

    In the above, Prof. Volokh puts more meat on my point.

  15. Trent and Robin, Volokh disagrees with your conclusion with respect to Padilla, in black and white.

    I agree with his [the dissenter’s] conclusion that the majority should have instead reached the individual right question, and held that Padilla was entitled to a hearing where he could “contest whether he is actually an enemy combatant thereby falling within the President’s constitutional and statutory authority.”

    Even the dissent in the Padilla case does not accept the Bush/Roberts position that the President of the United States may at any time on his sole authority lock Padilla or you or me up forever (incommunicado) on his sole unreviewable say-so.

    The primary issue is not whether illegal combatants may be punished and detained, even executed, it is the refusal of the Administration to set up any tribunal where prisoners may contest their status as illegal combatants.

    Instead of misquoting various authorities on this subject, why don’t you explain how we can reconcile night-and-fog “justice” with centuries of Anglo-American jurisprudence. Can you in any way differentiate it from the practices of the police state without reference to the wise judgment and fine moral character of the Jailer in Chief? I think NOT!

  16. Andrew, I look forward to you actually backing up your claim that I’m “misquoting” any authority. In the absence of such, I look forward to an apology.

    In the meantime, your comment “The primary issue is not whether illegal combatants may be punished and detained, even executed…” illustrates the fundamental basis of your misunderstandings. The detention of prisoners of war and illegal combatants is not punishment.

  17. Mr Roberts, please note that I wrote “punished and detained”. Are you so angry or desperate to refute me that you don’t see I meant these as two separate actions? (Agreed: “detained and punished” would have been clearer.)

    While the detention of enemy combatants is not punishment, the conditions in which Padilla is kept do constitute punishment, and under the Geneva Convention could not be meted out to ordinary, legal combatant POWs except as punishment for attempted excape and the like.

    Your claim “In the above, Prof. Volokh puts more meat on my point.” is an egregious misinterpretation of Volokh. Your statement implies that Volokh agrees with your claim, but I quoted verbatim the passage where Volokh makes clear he disagrees with you completely. No one, including Volokh, with any respect for the rule of law would endorse your position.

    It is not an oversight that you have not distinguished your doctrine of arbitrary detention from the practices of a police state. Why don’t you work on this during a break from wanton misreading of my claims—and Volokh’s—and I certainly do not apologize for calling out the difference between your version and the original.

  18. Andrew, the anger is obviously solely yours. I always amused when people accuse me of responding in anger – its a reliable clue that they are devoid of argument. In this case, we see that you have no argument other than your silly desire to label the Bush adminstration as a police state.

    Detention and punishment are two completely different concepts – after you’ve dealt with your own anger, you should spend some time considering that. And considering its meaning with reference to the legal precedents.

    I referenced Eugene Volokh expanding on my earlier point above about the ludicrous idea that enemy combatants should be treated as criminal defendants. Something that would have been obvious if you had actually followed the link.

    My quotations from the US Supreme Court case Quirin are not misquotations. When you’ve finished dealing with your own hatred and anger, you should reconsider your failure to apologize.

  19. Robin, it’s too bad you aren’t angry, because that would sort-of excuse (1) your condescending explanation of the difference between detention and punishment, despite the fact this distinction is clear in my post that you reference; (2) your total misreading of Eugene Volokh (which is the referent for my claim you misquote), who is signing on to the dissenting judge’s opinion that Padilla must be tried, but before a military tribunal, over against your position (shared by Bush) establishing the right of the President detain anyone he wants; (3) your inability to meet the challenge of distinguishing the Bush/Roberts position from the arbitrary practice of a police state.

    You also can’t read Quirin. Here is your own quotation, with your emphasis removed and mine added:

    Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful

    How this passage can be read to support the treatment of Padilla in the absence of a tribunal is beyond me. Padilla is not merely being detained, as one could at least plausibly argue about the Gitmo prisoners, he is also confined in conditions that amount to punishment.

    The simple fact is that the Quirin defendants got a trial even though they were in the service of an organization much more threatening to our liberties than Al Qaeda. The laws of war permit unlawful combatants to be determined and punished by tribunals, but not by the President acting alone, and not without allowing the prisoner to defend himself.

  20. I would like to see Robin answer Andrew’s primary question — is it OK to detain indefinitely without any rights whatsoever to any type of hearing or representation. That is the problem. The administration’s position is entirely indefensible, and they know it. Hence they are trying to allay political heat with half measures re Gitmo detainees.

    Padilla decision reaches one conclusion, and there are other alternatives for resolving the legal questions. But administration alternative to deny all rights whatsoever is the equivalent to police state “justice.”

    That Lincoln suspended habeas corpus in Civil War and FDR and Sp. Ct. went along with military detention of Japanese is in hindsight viewed as reasons NOT to repeat those policies. Not authority for doing it again.

  21. Personally, I’d divide my response into three categories:

    1) US citizen or legal resident, captured on US territory = legal system;
    2) US citizen or resident, captured abroad = no legal system;
    3) noncitizen captured abroad = no legal;

    I’m not sure what to do with noncitizens captured here.


  22. Dfmbeater, Andrew’s only purpose appears to be to call President Bush a Nazi. Andrew has forfeited all pretense at serious discussion at this time with his intentional misrepresentation of what I am writing and his nazi references.

  23. I am not misrepresenting your position in the least. You support the right of His Majesty the President to label anyone he pleases an enemy combatant, lock him up incommunicado, and throw away the key. Professor Eugene Volokh, whom you cited so favorably, condemns this claim in the radio interview here *LINK* as amenable to “military dictatorship”.

    I’ve asked you at least three times how we may distinguish Bush/Roberts’ policy from the policies of a police state, and you didn’t try. I suppose what you would like to say is that a dictatorship by George W. Bush is OK by you, you trust him to “disappear” only the bad guys (and if we are permitted elections, what of the next liberal President?), but you’d be laughed off the comments board.

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