What next? Protective custody? (Or, in the original German, Schutzhaft). The Times actually does some reporting although, as usual, far too late after the fact to be on any use (bourgeois riot; warrantless surveillance). Adam Liptak:
Padilla Case Offers a New Model of Terrorism Trial
The Justice Department’s strategy in the trial itself, using a seldom-tested conspiracy law and relatively thin evidence, cemented a new prosecutorial model in terrorism cases.The central charge against Mr. Padilla was that he conspired to murder, maim and kidnap people in a foreign country. The charge is a serious one, and it can carry a life sentence. But prosecutors needed to prove very little by way of concrete conduct to obtain a conviction under the law.
Indeed, the strongest piece of evidence in Mr. Padilla’s case was what prosecutors said was an application form Mr. Padilla filled out to attend a training camp run by Al Qaeda in Afghanistan in 2000.
“It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap,” said Peter S. Margulies, a law professor at Roger Williams University who has also written on conspiracy charges in terrorism prosecutions.
The conspiracy charge against Mr. Padilla, Professor Margulies continued, “is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime.”
Prosecutors have long loved conspiracy charges in all kinds of cases.
Recent terrorism prosecutions are doing more than using an old tool with new aggressiveness, legal experts said. They are also using it for a new purpose: preventive detention.
And because the goal is prevention, there’s no reason to give the prisoner a lawyer:
In a sworn statement in 2003, Vice Adm. Lowell E. Jacoby, then the director of the Defense Intelligence Agency, told a federal judge in New York that Mr. Padilla should be interrogated without access to a lawyer.
“It is critical to minimize external influences on the interrogation process,” Admiral Jacoby wrote. “Anything that threatens the perceived dependency and trust between the subject and interrogator [like a lawyer] directly threatens the value of interrogation as an intelligence-gathering tool.”
(Nice spin on “perceived.”)
Fortunately, the Supreme Court has rejected the Admiral’s rationale:
But Justice Sandra Day O’Connor, in her controlling opinion in Hamdi v. Rumsfeld, the 2004 Supreme Court decision that endorsed the detention of at least some enemy combatants to prevent their return to the battlefield, rejected interrogation as a rationale for detention.
Although there’s no telling what the Bush Court, with O’Connor gone, will do**.
The bottom line:
If Thursday’s verdict is upheld, the administration may thus have achieved the last in a series of practical victories. It held and interrogated Mr. Padilla without interference from the courts, and now it has convicted him of a crime that could put him away for life.
And of course, with no access to a lawyer, no habeas corpus, and no access to the courts, they can torture a prisoner as much as their shrivelled little hearts desire.
Obviously, that result was the desired outcome all along, and Taco Bell employee Padilla was just a poor sap they used as a tool. (Remember all the “dirty bomb” fear-mongering that went away because they couldn’t gin up the vaguest of evidence? Of course you do.)
But really, there’s nothing to worry about. Bush has a good man at the head of the program, and there are good Christian people running it.
And besides, if you just keep smiling, you’ll never get caught up in the system. Everything’s going to be fine. Just fine.
The bass are in the lilies. Pass it on.
NOTE Notice the jurisdiction shopping by the Bush regime to avoid bringing the case before the Court until they could get their operatives on it:
That same year, the Supreme Court ruled on a procedural question in the Padilla case but did not discuss whether his detention was proper. Just before the Supreme Court was to decide whether to hear his case again, the administration moved him to the criminal justice system.
Glenn has more on the regime’s maneuvering to get the opinions it wanted and grab as much power as possible.
We really need to stop saying “Supreme Court” and start saying “Bush Court.” It’s crystal clear, in retrospect, that Scalia et al wrote their “good for one time only” opinion in Bush v. Gore with the “election” outcome in mind, because they knew that Bush would get them the votes to impose their kind of jurisprudence. There is simply no reaon to believe that any decision by the Bush Court is, a priori legitimate. Fruit of the poisonous tree, and all that.
Front page
A slightly different perspective
Padilla’s conviction, along with Adham Amin Hassoun and Kifah Wael Jahhousi, could also be viewed as an important step back from the unconstitutional claims of authority made by the Bush administration.
The Administration was fearful that even this SCOTUS would find the detention and process acceptable, and so was forced to turn to conventional criminal proceedings. Passive, to be sure, but not even the “Bush Court” as you term it has in fact been supportive of this assault on citizen’s rights. Being forced into the standard judicial system was a defeat for Bush authoritarianism. Having to drop all of the original charges against Padilla, allegedly (probably) because they were obtained as the result of the torture of others, was a second defeat for Bush lawlessness. The conviction, in open court by a jury, is the most damning of all for Bush’s arguments for the need for secret tribunals – clearly, an open process was sufficient. What Bush has left of his grasping for dictatorial detention powers is the tenuous Fourth Circuit favorable ruling which will, sooner or later, find its way to the very Supreme Court that Bush feared would overturn it, and a seriously tainted conviction that may well be reversed on appeal. Thanks to Bush’s ineptness, Mr. Padilla may yet be walking the streets a free man regardless of his actual guilt or innocence. Slim pickings for a would-be dictator.
The net of it, after all the deceitfulness and wrangling and uproar, is that the Constitution has triumphed, all be it still partially. While it is certainly justified to be outraged over Bush’s usurpations, and certainly prudent to be wary of others still emerging, there is also justification for breathing a small sigh of relief that his detention policies have thus far failed to take hold. This is a never-ending battle but for now, in this matter and in this moment, the forces of constitutionality and freedom are actually winning.
I agree that it's better than it could be
However, triumphalism is distinctly premature. You write:
However, I had written:
And perhaps should have written “their operatives, Roberts and Scalia,” on it.
My point being that the Court with O’Connor is not the same as the Court with Scalia and Alito on it. I suspect that Bush will be a good deal happier appealing to the Court as it is today, and that is why he kept crawfishing the jurisdiction.
I say “The Bush Court” because in retrospect, it’s quite clear that Scalia, Thomas et al selected Bush as President in the “good for one time only” decision in Bush v. Gore because they knew that outcome would bring them the nominees who would vote for the kind of jurisprudence they wished to impose.
Too bad about the legitimacy, but I’m not the one who did that, and fruit of the poisonous tree…
We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan
No Note Of Triumphalism Here
but as with the effect we don’t really understand in patients recovering from an illness, a positive mental attitude and a balanced focus on both signs of healing as well as the disease leads to a faster recovery.
The packing of the courts with reactionary dominionists is the worst of the many contemptible acts of the Republican presidencies (and yes, the collusion by Democrats under some misguided sense of presidential entitlement was wrong, should never have occurred, is still unacceptable and must stop.) This issue and this issue alone to me justifies doing whatever is required to ensure that a Democrat and not a Republican is the next President. Another four years of corruption of the judiciary and the nation will truly be lost.
Well, whenever I read the words "the Constitution has triumphed"
no matter how heavily qualified (as they were) I tend to hear a note of triumphalism.
All I have to go on is the words.
Maybe if and when the Democrats manage to rewrite FISA (hopefully before the sunset), and if and when they manage to exercise oversight authority on Bush’s adherence to it, and if and when they hold Bush accountable for the lawbreaking he did with the previously enacted FISA, we can talk about “success.”
Let’s reserve “triumph” for the sort of classical scene where prisoners are led in chains through the streets of the capitol. Say, after a truth and reconciliation commission (where reconciliation means no jail terms). That would be a triumph.
We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan
It would be like 'Lost' or "a Clockwork Orange"
Jose Padilla has survived 43 months of extreme insulation. How can a human being be able to recover from such a mental Kafkaesque cataclysm? A lucid person can only imagine being lost in the outer limits of a hallucinogenic twilight zone.
http://www.associatedcontent.com/article…