Five Years On… How Significant is Padilla?
posted by Steve Vladeck
May 8 already has several claims to fame throughout history, including, perhaps most significantly, V-E Day — May 8, 1945, on which German forces unconditionally surrendered, ending World War II in Europe.
Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an “enemy combatant” until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.
Five years after his initial arrest, Padilla’s criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla’s criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding. I’m not nearly the criminal law or procedure expert that many of our readers are, and so won’t deign to speak with any authority as to the merits or the likely result here. Rather, there are two points that I think bear mentioning, even if together they may be somewhat irreconcilable.
1. It’s remarkable, in its own right, that the trial is actually happening–that Padilla got what, in effect, he had sought from the get-go, i.e., a meaningful day in court.
2. It’s a troubling reflection upon the law “after 9/11″ that it’s taken five years to get to this point, without any final and determinative resolution of the merits of Padilla’s military detention, and with the almost summary rejection of the argument that such a delay violates Padilla’s right to a speedy trial. If Padilla is ultimately convicted, one could see this case as setting a dangerous precedent for the future, where the government can hold terrorism suspects in military custody up until the point that a court is set to rule on the merits of such detention, and then moot such a decision by indicting the individual in a civilian criminal court. [It is this reality against which Justice Kennedy was arguably inveighing in his opinion respecting the denial of certiorari in Padilla last January.]
Ultimately, I’m not sure these points are in as much tension as they might seem to be. The system is working the way it’s supposed to; it just took the better part of five years to get there, and much will turn on the extent to which this case becomes precedent over the next five years.
Until then, happy anniversary.
May 8, 2007 at 1:52 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Current Events
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Responses (14)
y81 - May 8, 2007 at 11:25 pm
Gee, the Volokh Conspiracy highlights a guy who murdered a policeman 25 freaking years ago, and who is as of today seeking (but maybe not getting) a stay of his death sentence. So it’s taken at least 25 years for the dead cop to get justice, and you’re worried about a measly 5 year delay for some low-life terrorist? I’m not.
anon - May 8, 2007 at 11:32 pm
What I imagine terrifies Prof. Vladeck is that if Padilla isn’t who the government says he is (and it’s not like the government never makes mistakes), then it’s taken five years for Padilla to have a meaningful opportunity to say so. What’s to stop the government from doing the same to me, or to you?
Keith - May 9, 2007 at 1:09 am
Padilla of himself is insignicant; as an objective lesson he is immeasureable. Better, we should close Gitmo and move all these miscreants to prison barges at Diego Garcia with no windews, air conditioning or hot water. Oh, no Koran or prayer rug either. Further, Padilla should join them again, for he’s already shown his commitments. “Anon”, trouble not your heart if you’ve never gone to an al Qaeda training camp and taken the pledge. Relax sports fan, you and I aren’t the problem.
Ryan Waxx - May 9, 2007 at 2:31 am
> What’s to stop the government from doing the same to me, or to you?
Riiight. Let me know when you have an actual example of the government picking random people up off the street and charging them with terrorism.
Until that day, can the hyperbolic and insufferable ‘Today – Al-Queda, tomorrow – librarians!’ nonsense.
You can spend the hours (… or is it mere minutes?) between now and the police state by doing some actual. you know, reading about what an enemy combatant designation is and what the difference is between that and an ordinary police arrestee.
You might even learn something. Naaah.
Rufus Lee King - May 9, 2007 at 5:28 am
The absence of an authorization for the use of military force by Congress on a group we are a member of, for one.
Jose Chung - May 9, 2007 at 5:35 am
“What’s to stop the government from doing the same to me, or to you?”
Nothing.
If you or I were travel to Pakistan or Afghanistan and train to kill innocent people en mass and then fly back here to kill as many innocent Americans as possible the government will hopefully do the same thing to you or I. Understand?
DWPittelli - May 9, 2007 at 6:41 am
As the line was drawn in Ex Parte Quririn (1942), it is key that Padilla was arrested shortly after arrival from overseas. This is not a “domestic” case.
dennism - May 9, 2007 at 8:27 am
I can’t understand why the Dept of Justice doesn’t prosecute Padilla in Oklahoma City. You could drive a truck through the Federal Courthouse and not risk hitting anyone. There’s dust on the Court Clerk’s counter. We could use the tourism dollar.
anon - May 9, 2007 at 9:18 am
To be fair, I think some of the comments are reflecting the same hyperbole that Ryan and Keith are accusing me (and Prof. Vladeck) of. My concern is fairly straightforward: _If_ Padilla isn’t who the government says he is — and I’m not saying he is, I’m just raising the possibility — he has not yet had a chance to meaningfully rebut the evidence against him. And so, even though I am not a member of a group against whom Congress has authorized the use of military force, and even though I didn’t fill out an “application form,” if the government, through even the purest of motives, thought I was and I did, should it really take five years for me to have a chance to say otherwise?
loki13 - May 9, 2007 at 10:08 am
So let me get this straight…
If I work or visit overseas (say, an oil worker in Saudi Arabia, or the UAE)…
and I’m returning home on an international flight….
That’s an international matter (Ex parte Quirin)
Then, if my name happens to resemble that of an actual terrorist, of a foreign intelligence agency just screws up, or if the government gets something wrong, I can be tortured (yes, Padilla was tortured) for 5 years before I get a day in court before I can even assert the government might have been mistaken. And this is when I am a US citizen?
No one has a problem with this? Even though Padilla wasn’t ‘captured’ on a battlefield? Even though he was apprehended in the United States? Even though the Government’s legal shellgame with Padilla finally drew the rebuke of one of the most conservative jurists and circuits around?
*sigh*
He may be guilty (although not of the dirty bomb plot, a the government acknowledges that was lie, or the apartment bombings, as the government acknowledgees that was a ‘misrepresentation’, but he may be a bad guy) but just charge the guy.
Wildmonk - May 9, 2007 at 12:36 pm
I can see the point being made by Rufus, Jose, etc. about the unlikelihood of the average Joe being picked up and detained for five years in a military prison. Nonetheless, guys, you have to admit that it would be better to follow procedure than to set the precedent that the government can ignore it at their discretion. Yes, today, you and I might agree that this guy deserves to rot in jail if he really betrayed his country.
But today’s “necessity” becomes tomorrow’s convenience very, very easily when you’ve got a rogue prosecutor or “idealistic” FBI agent.
So I say we should’ve given this guy his day in court and *then* locked him up forever once the case against him was proven.
geezergeek - May 9, 2007 at 12:45 pm
loki13
Perhaps you could enlighten us as to exactly what torture was inflicted on poor Jose, and your sources. And surely the implication that that torture continued for 5 years isn’t hyperbole? And when and where was it established that the “dirty bomb” allegation was a lie? Help us (the unwashed and uninformed commoners) out here.
loki13 - May 9, 2007 at 7:38 pm
1. Re: dirty bomb:
-There is nothing in the charges that were filed against Padilla about a dirty bomb. There is also no link to attacks being planned against US targets. Why the dirty bomb? KSM mentioned it, and it was a useful bone to throw. Since he has not been charged, and the only ‘evidence’ of a dirty bomb plot involving him was Ashcroft’s initial news conference. the burden is not mine to establish he is not involved.
Perhaps ‘lie’ is too harsh. ‘Made up’ or ‘Scare tactics’ work just as well, with perhaps less malice imputed.
2. Torture:
Your definition of torture may vary. He was not (to my knowledge) placed in an iron maiden. He was subjected to sensory deprivation, stress positions, intesnive solitary confinement, and long periods of sleep deprivation. Five years of this contributed to such a serious decline of his mental health that it is questionable as to whether or not he is competent to face charges (see previous proceeding for competence against him). Federal government has conceded the truth of these statements in the court hearings to determine competency.
Corey Mondello - May 23, 2007 at 4:44 pm
The President of the United States of America can name anyone an “enemy combatant”, with or with out evidence.
Once he does that, he does not need to tell anyone nor the person he has dubbed “enemy combatant”.
The said person, who does not know what is going on, has not been told what is going on and is told he or she cannot ask for a lawywer, contact anyone or even what the future holds for them.
This person can be confined in isolation for the rest of their life, with no human rights guaranteed, never be told why they are there and never allowed to contact someone on the “outside”.
This is all legal and it can happen to American Citizens thanks to the “Patriot Act” and any signing statement Bush adds to any bill passed or laws made.
Bush is a dictaor, a terrorist, a theocrat, a sociopath, a danger to the world, and has ruined America more than any President in the past.
This administration has created more enemies for Americans, and I would not be surprised if someone bombs us.
Corey Mondello
Boston, Massachusetts
http://www.CoreyMondello.com
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