Jose Padilla, the details matter

Jose Padilla is an American citizen arrested on American soil and accused by President Bush of being an enemy combatant. To that end he was thrown into prison three years ago where he has rotted ever since. In October of last year the Supreme Court ruled that Padilla's appeal against his status as an enemy combatant had been filed in the wrong court and ordered his case retried in a different court district (one that just happens to be much more conservative than the one that heard his original case). Nearly a full year later a decision has just come down from the Fourth Circuit Court of Appeals. The details of the situation make for interesting reading.

To understand what just happened in the Padilla case one has to understand the Supreme Court's decision in the Hamdi case. In that decision the Supreme Court interpreted Congress's Authorization for Use of Military Force Joint Resolution (AUMF), passed just after 9/11/2001, as giving the President the ability to declare people (specifically including American citizens) as enemy combatants and to hold them until the end of hostilities1.

The court did however put one check on the President's powers, anyone who is labeled an enemy combatant has the right to appeal their designation before a neutral party. The Hamdi decision is clear, however, that this 'neutral party' doesn't have to follow the normal rules of criminal courts in the U.S. For example, the decision points out that hearsay evidence could be accepted and there could be be a presumption that evidence submitted by the government is correct. In other words, the accused has to prove their innocence. The point of these process changes is to not unduly burden the government during a time of war.

With the Hamdi decision as background the question the fourth circuit court of appeals ruled on in its judgment on 9/9/2005 (three years into Padilla's imprisonment without trial) is – if you assume that everything the government says about Padilla is correct (e.g. that he is a terrorist) does the Hamdi decision apply to Padilla? Padilla's argument is that the Hamdi decision was about an American citizen who was arrested on the field of combat in a foreign country (Hamdi was arrested in Afghanistan) while Padilla is an American citizen arrested on American soil. The fourth circuit's decision is that Hamdi does apply to Padilla. That is, the President has the right to declare American citizens as enemy combatants thanks to the AUMF regardless of where the American citizen happens to be.

Padilla's lawyers will, of course, appeal and the process will continue. If Padilla should lose his appeal on this point then presumably the Hamdi decision will kick in and Padilla will be able to file an appeal against his designation as an enemy combatant and get his day in some form of a court, one in which the cards have been intentionally stacked in the government's favor.2

An interesting side note is that the judge who wrote the Fourth Circuit's opinion is Judge Luttig who is apparently high up on President Bush's list of supreme court nominees. It seems to me that ruling on a case that plays to the interest of someone who has it currently in their power to give you something you presumably want very badly is pretty much the definition of conflict of interest.

The bottom line is that the President has been handed a dangerous new power to throw people in jail based on hearsay and without a presumption of innocence for an as yet undefined period of time. The only solace I take from this is that the President's argument that he has the inherent constitutional right to throw anyone he wants into jail without a trial has so far been completely rejected by the courts. The Hamdi decision explicitly is not based on a general Constitutional power but rather on AUMF and thus leaves open the possibility that what Congress giveth so Congress can taketh away. Furthermore the Hamdi decision rejects out of hand the ability of the President to make people enemy combatants without any judicial review. But given the nature of such judicial review I can't say it gives much comfort.

This blog entry helped me a lot in understanding some of the issues.

1The only problem being that a "war" against terror has no end. The Hamdi decision does at least imply that once hostilities in Afghanistan end Hamdi would have to be charged with a crime or released. The Padilla decision makes reference to Hamdi's text on this point and applies it to Padilla as well giving the same implication.

2When I first read the fourth circuit's opinion I was confused because it seemed to say that both Padilla and the government agreed that Padilla was a terrorist and the only issue was if Padilla should be tried as a common criminal or be declared an enemy combatant. What had actually happened was that both Padilla and the government agreed to the statements in the decision about Padilla being guilty for the sole purpose of deciding if the Hamdi decision applied to Padilla. Once that decision is made, regardless of how it eventually comes out, Padilla will still be free to argue that the government's statements about him are false. In other words, Padilla's agreement to stipulate he is a criminal only applied to his current appeal and only for the purpose of deciding the very limited question of – should criminals such as he is accused of being who are arrested on American soil be tried as common criminals in the criminal justice system or can they be declared enemy combatants?

2 thoughts on “Jose Padilla, the details matter”

  1. Thanks for the interesting post on Padilla. Honestly, this is the kind of thing that makes me read blogs and believe that they can truly have a big impact in saving us from a complacent and lazy media.

    I wanted to bring to your attention one of the best-written and most power posts I have read from a blogger. It is from lawyer Glenn Greenwald on his Unclaimed Territory blog about the serious dangers shown by the Jose Padilla case:

    True Tyranny Defined: Bush Admin. v. Jose Padilla

    Essays like that, and your website, are what make blogs so great. Thanks again for all of your great work.

  2. The article Alice linked to is a very powerful one, I would recommend that readers who liked this article also read it. It says many of the things I wanted to say in my Padilla Charged ( article but decided not to because I just didn’t know enough about Alito to feel comfortable making the charges stick.

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