Poor old Jose Padilla. About the only thing going good for him lately is that the media has been showing some accurate images of him, unlike the well-known doctored photo from 2002, which was "re-touched" to appear more menacing.
Now at least he looks like his real self, wearing his orange prison suit for the 4th year in a row.
I think the best way to get a grip on Padilla is is to make a quick timeline:
1970 - Born in New York City to Puerto Rican parents, Padilla is an American citizen.
1984 - Now living in Chicago, Padilla is a member of a gang and gets into a fight with a rival gang, resulting in the death of one of the rival gang's members. Padilla serves time for the assault.
1991 - Now living in Florida, Padilla becomes a father although he is not married. He serves several months in jail relating to a road-rage incident.
1992 - Turning over a personal leaf, Padilla renounces violence and becomes interested in Islam after meeting Muslims while in prison.
1996 - Now calling himself Abdul al-Muhajir (but not legally changing his name), Padilla marries the mother of his son.
1998 - Although the divorce would not become final for another 2 years, Padilla separates from his wife.
1998-2002 - Padilla travels around the world, including to Saudi Arabia, Pakistan, Afghanistan, Iraq and Egypt.
May 8, 2002 - Padilla is arrested at the Chicago airport when he arrives in the country from Switzerland. The original reason for detention is that Padilla is a "material witness" with information about the 9/11 attacks, the warrant being issued in New York state.
June 9, 2002 - Two days before the judge in the case was to rule on the validity of the material witness warrant, Bush orders Rumsfeld to designate Padilla as an "illegal enemy combatant". Padilla is transferred to the military's custody and is housed in a military prison in South Carolina. Neither Padilla's family nor his lawyer was informed. Padilla is then kept in isolation, in a cell monitored 24 hours a day, with the lights on 24 hours a day, and is not allowed any contact with the outside world.
December 18, 2003 - the U.S. Second Circuit Court of appeals hears a habeas corpus motion filed by Padilla's lawyers (Padilla is not present). The court rules that the habeas corpus appeal is valid and rules that Bush cannot detain an American citizen as an "illegal enemy combatant" without Congressional approval. The court orders Padilla to be released within 30 days but stays this ruling so that the government can appeal to the Supreme Court.
June 28, 2004 - The Supreme Court hears Padilla's case but eventually rules it was improperly filed because it named Rumsfeld and not the military commander of the prison in which Padilla was being held. Padilla's legal team is told it can re-file the case though.
June 13, 2005 - The Supreme Court refuses to hear Padilla's case, saying it should be first heard in the 4th U.S. Circuit Court of Appeals.
September 9, 2005 - The 4th Circuit Court of Appeals rules that Bush can indeed hold an American citizen indefinitely as an "illegal enemy combatant", including specifically Padilla. Padilla's legal team files an appeal to the Supreme Court.
November 22, 2005 - The federal government orders Padilla to be transferred from military custody to civilian custody in Florida, where Padilla is charged with a crime for the first time. Padilla was never officially "undesignated" an illegal enemy combatant and the federal government publically stated it could hold him indefinitely as an illegal enemy combatant even if he is acquitted in Florida on criminal charges.
January 3, 2006 - The Supreme Court grants the federal government's request for Padilla to be transfered to civilian custody while it reviews his original habeas corpus appeal.
April 3, 2006 - Voting 6-3, the Supreme Court refuses to hear Padilla's appeal of the 4th Circuit Court's decision, effectively confirming that Bush has the power to hold an American citizen indefinitely as an "illegal enemy combatant".
There are a couple of super important issues here for all of us, not just Padilla. The first of course is that if the president, either this one or any other one, "determines" that a citizen is an "illegal enemy combatant", the citizen can be held in prison indefinitely without ever being charged or going to trial. There is absolutely no judicial review of this procedure.
I'm not saying Bush had a personal hatred of Padilla, but theoretically Bush could designate someone he personally dislikes as an "illegal enemy combatant" and keep them imprisoned for the rest of their natural life if he wanted to, without that person being charged or ever being tried in a court of law.
Oddly enough, many of the people in Guantanamo Bay have had a better deal than Padilla, as hard as that is to believe. As crooked and rigged as those military tribunals have been in Gitmo, those detainees at least had a chance to defend themselves, to hear (some of) the charges and evidence against them and to plead their innocence. Some detainees at Gitmo have furthermore been declared not a threat and released. Padilla meanwhile has never had a chance to argue his case in any forum whatsoever.
All of Padilla's legal cases so far have been habeas corpus motions, by which his legal team is simply challenging the government's right to keep him detained (arrested). In effect, they've been saying the president can't just take American citizens and keep them locked up without charging them with a crime while the federal government has (successfully) argued that it can. It's important to remember that Padilla has never once had a chance to defend himself against allegations of being a "dirty bomber", terrorist, etc.
Not once has the federal government ever stated that Padilla ever carried a gun or fought anyone anywhere. The "illegal enemy combatant" term refers to the allegations that he "trained" in a camp in Afghanistan operated by Al-Qaeda. No weapons or bomb material was ever found in Padilla's posession.
The charges against Padilla in civilian court, which he will be able to defend himself in the usual way (with lawyers, etc), are solely related to fundraising for terrorist groups. If the government wins this case, they will simply be convicting Padilla of raising money, not anything directly related to participating in or planning any terrorist event.
So how did Padilla become an "illegal enemy combatant" anyway?
It all has to do with a Pakistani man named Abu Zabaydah, who is described as a "senior deputy" to Osama bin Laden. He was captured by Pakistani forces in the city of Faisalabad on March 28, 2002 after a "shootout" with authorities.
Although Abu Zabaydah was severely wounded, he managed to begin to provide information under interrogation. He said he met an American man, whose name he did not remember, in the Afghan city of Khowst. This unnamed American told Abu Zabaydah that he wanted to build and explode a "dirty bomb" back in the United States.
The American government then "determined" that Padilla was this man that Abu Zabaydah had met and put his name on a watch list on April 24, 2002. If they could have "rendered" him in Pakistan, I'm sure they would've. Padilla, unaware he was on this list, boarded a plane in Switzerland and flew to Chicago where he was seized at the airport.
Even more interesting, the American government apparently had found Padilla in Switzerland because they had a number of undercover agents on board the flight Padilla took to Chicago. But apparently not wanting to upset the Swiss, they waited until he touched down on American soil before seizing him. They did so based on that material witness warrant from New York, which amazingly was voided (dropped) as soon as Padilla was designated an illegal enemy combatant.
Imagine this now. Imagine if the American government had found Padilla in Pakistan. They could easily have rendered him to a secret prison somewhere around the world, keeping him there for years on end, interrogating him to their heart's desire and no one would be any the wiser. Padilla's family might have tried to raise awareness about his plight, but nobody would pay much attention to someone arrested in Pakistan, thinking he must be guilty if he had been over there in the heart of Al-Qaeda country.
The reason anyone pays attention to this case, however slight, is because Padilla was seized in America and because he is an American citizen. He wasn't captured on some battlefield in Afghanistan or in some Al-Qaeda stronghold in Pakistan, but in Chicago, Illinois. And he has been held virtually incommunicado for 4 years, without access to lawyers and courts, much less his family. Has never been charged with a crime until 2006, and then the charges were completely unrelated to anything about being an "illegal enemy combatant".
Reading the tea leaves, it looks like the federal government thought they had a hot case against Padilla because of what Abu Zubaydah revealed during his interrogation. They thought that Padilla was really about to commit some serious terrorist act and so they whipped up a "material witness" warrant to seize him the first clear chance they got, which was when he deplaned in Chicago. The problem with the material witness warrant is that it did give him access to a lawyer and the right to challenge his detention, and the government wanted to interrogate him further without all that "interference".
So Bush designated him as an "illegal enemy combatant" and put him in a military prison, where he was interrogated for years by the military. And after years of appeals, when it looked like the Supreme Court was on the verge of hearing Padilla's case appealing the legitimacy of being held indefinitely without being charged with a crime, the government "allowed" him to be transferred to a civilian prison to be tried on ordinary criminal charges. And that trick worked, because this week the Supreme Court ruled that Padilla's petition was moot since he was now being held by a civiliant court following standard judicial procedures (i.e. charged with a crime).
Padilla's trial is likely to be over around September of this year. If he is acquitted, which is a strong possibility, Bush can then order him held once again as an "illegal enemy combatant". They've said publically many times they can and will do this. Padilla's lawyers would then have to start over from scratch, moving slowly through the court system, which takes years before reaching the Supreme Court.
If this wasn't already enough of a travesty of justice, the federal government has moved to enter evidence from his years of being interrogated in a military prison at his criminal trial in Florida. Ordinarily, and in my opinion lawfully, the rules of criminal trials state that the government can only use evidence from the defendant which is acquired after the defendant knows his/her rights, including the right not to incriminate themselves and to first speak to a lawyer. Padilla never had this right during the years he was kept imprisoned in solitary confinement in a military prison, yet the government wants to use this evidence against him now.
Imagine now if an American citizen had been traveling to Cuba as a tourist. Imagine if the Cuban government arrested him and charged him with being a terrorist, despite the fact that there was no hard evidence he even knew terrorists, much less had any weapons or bomb-making material in his possession. Imagine if the Cuban authorities kept him locked up in a jail for years without access to a lawyer or his family, and never even gave him a day in court to defend himself. Quite frankly, there would be an international uproar.
Except that would never happen because even in Cuba they don't do that. Sure they sometimes have secret trials and true they sometimes fabricate charges against defendants, but they always give them access to lawyers and they always charge the defendants with a crime. And never once in more than 40 years in power has Fidel Castro ever ruled that someone could be held indefinitely as a prisoner with no possibility of appeal or a chance to defend himself in court.
Sometimes people wonder why so much fuss is being made about Padilla, especially since he might really be a terrorist and might really have been planning on committing a terrorist act inside the United States for Al-Qaeda. To those people, I say conspiracy to commit terrrorism is a crime and if the allegations against Padilla are true, then charge him in a court of law. Follow the laws (including those on obtaining incriminating evidence from the defendant), give him a trial and access to lawyers, and if he is guilty he will be convicted and sentenced appropriately. If that were to happen, not a single person in America would shed a tear for Jose Padilla.
But that's not what happened. A vague report from a badly wounded man interrogated in Pakistan and other circumstantial evidence is all the government has against Padilla. And for that he was kept in solitary confinement for 4 years in a military prison, a fate worse than lawfully convicted murderers and rapists and child molesters suffer. And we may never know exactly how Padilla was interrogated and by what methods. What we do know is that all of those amendments to the Constitution, which we all thought were a bill of "rights", turned out not to be rights at all but privileges granted to civilians that can be taken away whenever the President wants.
Sometimes people say that Padilla's case is a one-time fluke, that it will never happen again. But the law comes from judicial precedent, and Padilla's (so far) failed attempt to challenge the government's right to hold him indefinitely means that this can happen to someone else in the future. It could happen to any single American citizen on American soil who is "determined" to be an illegal enemy combatant.
And what exactly is an illegal enemy combatant anyway? There is no legal definition of that anywhere. The Geneva Conventions never mention it, only referring to "enemy combatant" aka soldiers fighting in a war for the opposite side, aka "lawful" enemy combatants. And when those "lawful" enemy combatants are captured, they become Prisoners of War, a term well-defined in domestic and international law, as well as how they are to be treated.
Most of the limited legal precedence on what exactly an "illegal enemy combatant" is comes from a 1942 Supreme Court case commonly called Ex parte Quirin. The Supreme Court ruled that the American military had jurisdiction to hold a tribunal for 8 Germans arrested in the United States on charges of sabotage. Since the Germans were "combatants" for Germany but were not fighting in a "lawful" manner, i.e. wearing a uniform and openly soldiers, they were therefore "illegal" enemy combatants.
The difference here of course is that every single member of Al-Qaeda has been "determined" to be an illegal enemy combatant, unlike in Germany where uniformed members of their military were "lawful" enemy combatants. So by association, every single "member" of Al-Qaeda can be detained and not receive the benefits accorded to official Prisoners of War. It's quite a piece of mental gymnastics for the United States to be legally at war with Al-Qaeda yet the only side "legally" allowed to fight is the United States.
Furthermore, the German prisoners at least had a venue in which to defend themselves - a military tribunal - and had access to lawyers as well. And their case was held in 1942, some seven years before the United States signed the Geneva Conventions protocol on how to treat people captured during a war. Specifically, the GC Third Convention states quite clearly that anyone captured who is not a Prisoner of War must be given a venue (a "competent tribunal") to determine their status. Jose Padilla has never once appeared in any tribunal to have his status determined.
Even worse, there is no American domestic law which refers to American citizens being designated as "illegal enemy combatants". None whatsoever. There is not a single statute on the books which says the rights of an American citizen, including those in the 5th amendment, can be abridged or denied if the citizen is determined to be an "illegal enemy combatant".
And since Al-Qaeda is not a sovereign government of some nation, there is no legal way to determine who is and who is not a member. Therefore someone who met an Al-Qaeda "member" in a mosque a single time might also be considered an Al-Qaeda member as well, immediately making that person's rights null and void should the president "determine" s/he is an enemy combatant. I hate to be glib, but it's almost as if Al-Qaeda is the grown-up version of the "cooties", where incidental contact can contaminate you for life.
What about American citizens who make statements that are construed as being supportive of Al-Qaeda? Are they too then eligible to be determined as "illegal enemy combatants"? If so, they too could be detained indefinitely without charge. It isn't much of a stretch to say a vocal anti-war protester is a supporter of Al-Qaeda because as the president said, if you're not with us, you're against us.
Having citizens disappear into military prisons for years on end withuot charge is the hallmark of dictatorships and police states. It's something the United States and all Americans have abhored and roundly criticized for years. Thousands of people from all over the world, from Argentina to China, know the horror of having family members "disappeared", often never to be seen again.
It's not supposed to happen in the United States but it has, and why millions of people are not in the street to protest this is something I cannot understand. Either every single American citizen has inalienable rights or they don't, and if they don't apply every single time then they aren't rights at all, merely privileges. Either you have the right to challenge your imprisonment or you don't. Either you have the right to a lawyer or you don't. Either you have the right to face your accusers in a court of law or you don't. Does the Constitution contain a Bill of Rights or a Bill of Privileges?
Which is it?
Cross-posted from the doubleplusungood crimethink website Flogging the Simian
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