Padilla finally charged

[Cylinder]

Cylinder, I see your point, and you say that the safeguards are upheld by the courts, the constitution and by congress, and I have insufficient knowledge to dispute this. How is this demonstrated (if at all) to the American public? For me, the 'argument of expectation' stands because having a government official, elected or otherwise, tell me that 'justice has been done, but we can't prove it' is a more than a little worrisome.

Detention as a combatant is on its face. Congress declared that the United States was at war with al Qaeda. The person with constitutional authority to conduct that war - which, under the US Constitution is the President - gets to make certain decisions regarding that responsibility. If someone disagrees with the constitutional nature of the power asserted, they have access to US courts to challenge that assertion. Courts do not get to decide if it is a good public practice, they simply decide if the Constitution grants that power and, if so, if the way that power is currently being used prohibited in any of its manifestation by other rights granted to the people.

And the points you make are more relevant during 'time of war' but how long has the US got to be free of attack before the 'war' is over?

That's a legitimate question to which I do not know the answer. The question has not been raised practically since the US is being attacked on a daily basis by al Qaeda forces in Afghanistan and Iraq and are allies are being targeted such as in London, Bali, Madrid and Amman. The term, such as I illustrated in the Hess example is indefinite in the sense that the future is unknowable.

When are these draconian powers revoked?

Never. They are enshrined in the Constitution.

...indeed, the decision over when to end these special powers (The Patriot act, am I right?)

No, the USA PATRIOT Act is a separate issue entirely. It allows certain law enforcement practices such as wiretaps and national security letters. It has nothing to do with arrest and detention powers per se. It changes how the US government can gather information about terrorist suspects.

...will be made using information protected by it, so in theory there can be no attack on US soil for years, and the security services can keep using these powers because the population would have no access to information that would be relevant in ending them.

I really don't know exactly how to answer this. The US population doesn't really begin or end states of war under the US system - Congress and the president does. The population (through voters) choose their congressional representation and the president. They have access to whatever information is in the public record to base these decisions on.

At some point, the president will report that the objectives set forth in the Authorization of the Use of Military Force (AUMF) resolution has been achieved. That will be the statutory end of the war powers granted him by the constitution. It's unclear to me if Congress could expire the AUMF unilaterally. The President with consent of the Senate could also enact a treaty ending the war with al Qaeda.

At some point, the courts may weigh in and cancel his authority with the opinion that a state of war no longer exists though this is unlikely in the extreme. Instead you might see a much narrower view on powers of detention because of the protracted nature of this particular war. It seems that the president is trying to cooperate with the spirit of previous SCOTUS rulings in this regard.
Hey, it's your country, but if I were you, I'd be worried!


(ETA - and isn't the suspect in US law, still an innocent man, or has that been revoked too?)[/QUOTE]

 

[3point14]

Thank you for all of that, I am enlightnened. I have ended the day with more knowledge than I started (and that's always good)

I still have major reservations (read 'I don't think they should be able to') about the US being in a 'state of war' and being able to do these thigs, but at least now I have more facts.

Also, please don't interpret this as saying that it's any better elsewhere in the western world, I'm sure if 'hoest Tony' could get away with implimenting such powers, he would.

 

[fishbob]

Criminal charges are not the standard. Padilla was being held as an enemy combatant. As such, he is subject to detention for the course of the conflict a priori. In fact, had Padilla came to the United States in uniform and in furtherance of an attack against a military target in accordance with the laws and customs of war the government would be prohibited from charging him with a criminal offense because of his combatant privilege.
. . . . .
This is a very peculiar claim. At some point this argument should be promoted to Article of Faith. According to FindLaw, Padilla has been heard before: . . .

Here lies the problem - criminal charges should be the standard. The entire Padilla hoopla could have been avoided by starting due process Padilla when he was detained - charge him and take him to court. What reason is there to hold Padilla as an enemy combatant rather than to treat him as a criminal? I suspect political posturing - looking tough against the terrorists.

Here is another problem. In the sources you posted, there are assertion, allegations, and arguments of legal points, but there is no actual presentation of evidence.

 

[Mark]

Here lies the problem - criminal charges should be the standard. The entire Padilla hoopla could have been avoided by starting due process Padilla when he was detained - charge him and take him to court. What reason is there to hold Padilla as an enemy combatant rather than to treat him as a criminal? I suspect political posturing - looking tough against the terrorists.

I suspect it was an attempt to establish firm legal precedent that it is OK for the US government to detain anyone, indefinitely, with no charges being brought.

Why this does not outrage and frighten every American is beyond me.

 

[CBL4]

The charges were filed because Padilla's case was headed to the Supreme Court. The government had until next Monday to respond to Padilla. They decided to finally charge him rather than risk losing the ability to jail Americans without charges.

It's a good strategy. Hold them until the Supreme Court is about to decide, then file charges. The Supreme Court will declare the appeal moot. Bush can hold other Americans without trial for years. When their appeals gets close to the Supreme Court, then Bush will file charges against them too. It should serve Bush until he leaves office.

Another Padilla attorney, Andy Patel, said he was not surprised at the indictment or the timing, with a petition pending before the U.S. Supreme Court over the constitutionality of the way "enemy combatants" have been handled by the Bush administration.

"The issue before the Supreme Court is still alive and active -- that the president signed an order to hold an American citizen for three years without criminal charges," Patel said. "The fact that they now decided to charge Mr. Padilla with a criminal offense doesn't mean they couldn't do this again to another person in the future.

"The Supreme Court will make the decision about whether or not they want to take this case."

In July, Patel argued before a federal appeals court in Richmond, Virginia, that the government ought to charge Padilla or release him.

"The fact that the government filed criminal charges is a vindication not just for Mr. Padilla but for the whole constitutional process," he said.

Padilla's attorneys filed their latest appeal to the high court on October 25, and the government had until next Monday to respond. This indictment likely will make that pending Supreme Court appeal moot.

http://www.cnn.com/2005/LAW/11/22/padilla.case/index.html

CBL

 

[Mark]

The charges were filed because Padilla's case was headed to the Supreme Court. The government had until next Monday to respond to Padilla. They decided to finally charge him rather than risk losing the ability to jail Americans without charges.

It's a good strategy. Hold them until the Supreme Court is about to decide, then file charges. The Supreme Court will declare the appeal moot. Bush can hold other Americans without trial for years. When their appeals gets close to the Supreme Court, then Bush will file charges against them too. It should serve Bush until he leaves office.

http://www.cnn.com/2005/LAW/11/22/padilla.case/index.html

CBL

Then, if a Democrat gets in office and does something about this outrage, he/she can be labeled as "soft of terrorism." It is a rather brilliant tactic. I wonder who thought of it?

 

[LordoftheLeftHand]

I would guess that Jose Padilla is a dirt bag and probably deserves what he has got. But nevertheless the precedent of being able to hold someone for that amount of time without charges scares me. Even if you trust that the current administration is doing the right thing, what about the next one? This administration may not have abused an innocent person with these draconian laws, but it is only a matter of time before someone does.

LLH

 

[joobie]

I know nothing of this, but are you guys seriously telling me that this guy was held for 3 years without charge???? No evidence was required to be produced, he had access to legal advice, surely?

in order: yes, not publically at least, and presumably as his case managed to make it to the SCOTUS.

And what safeguards are in place to ensure that this level of state power isn't abused?

none, apparently.

Boy you guys must have immense faith in your government!!

me, not really. some less so, some more so. some people apparently have plenty of faith. you can pretty much judge it by the replies here so far.

 

[Random]

Then, if a Democrat gets in office and does something about this outrage, he/she can be labeled as "soft of terrorism." It is a rather brilliant tactic. I wonder who thought of it?

A Democratic President could just declare all the Republicans in the House and Senate to be enemy combatants and lock them up. They are clearly not acting in the interests of the US Constitution.

 

[Melendwyr]

If I were on the Supreme Court, I'd still hear the case. Clearly, the government is not intended to hold people for an indefinite period before charges are filed - three years is simply too long. Even though the government is no longer holding Padilla without charges, it did so for a very long time - and that behavior can be ruled unconstitutional.

 

[Ladewig]

What reason is there to hold Padilla as an enemy combatant rather than to treat him as a criminal? I suspect political posturing - looking tough against the terrorists.

I suspect the reason was the government wanted to interrogate him. It is easier to draw information form suspects that are held in isolation and not allowed access to lawyers, other prisoners, and news media.

 

[RandFan]

I'm an alum of the Law & Order School of Law and Law Enforcement...

Me too. I also have a couch *potato degree in forensic science (CSI).

*That's potatoe for Dan Quayle.

 

[Chaos]

Me too. I also have a couch *potato degree in forensic science (CSI).

*That's potatoe for Dan Quayle.

Off-topic: Does that means I can get a Warp Physics degree from having watched too much Star Trek in my youth?

 

[CBL4]

When Padilla was arrested, Ashcroft said he was:

"a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States"

http://www.reason.com/links/links112305.shtml

On June 1, 2004, Deputy Attorney General James Comey testified to the
Senate Judiciary Committee about Padilla:

According to Comey's opening statement–style presentation, Padilla was initially tasked with finding an American apartment building that used natural gas, and converting the fuel into a weapon that could take out as many as 20 apartments at once.

Now he is indicted for allegedly conspiring to "murder, kidnap and maim" people overseas. What happened to all the stuff he was going to do in the US?

CBL

 

[jj]

Now he is indicted for allegedly conspiring to "murder, kidnap and maim" people overseas. What happened to all the stuff he was going to do in the US?

CBL

HOW DO WE HAVE JURISDICTION OVERSEAS?

 

[LordoftheLeftHand]

HOW DO WE HAVE JURISDICTION OVERSEAS?

That is a good question.

 

[CBL4]

Originally Posted by jj
HOW DO WE HAVE JURISDICTION OVERSEAS?

It was allegedly a conspiracy to commit crimes overseas.

But considering that he was coming back from overseas when arrested, it sounds like the conspiracy took place overseas as well. Part of the conspiracy might have happened in the US though.

CBL

 

[peptoabysmal]

HOW DO WE HAVE JURISDICTION OVERSEAS?

The US has jurisdiction over Americans who conspire to commit crimes overseas.
http://news.findlaw.com/hdocs/docs/padilla/uspad111705ind.pdf

 

[fishbob]

A few details from the indictment

The indictment specifically alleges that, as part of the conspiracy, Mr. Padilla filled out a terrorist training camp application form in July 2000 in preparation for his violent jihad training in Afghanistan and, shortly thereafter in September 2000, was reported to have arrived in Afghanistan by his co-conspirators.

http://www.usdoj.gov/ag/speeches/2005/ag_speech_051122.html

An application form??

Have you ever been arrested?
Have you ever commited brutal acts of violence?
Can you drive? (Manual, Automatic, or Both)
Can you carry up to 50 pounds for short distances?
Provide the names, phone numbers, and addresses of 3 people we can contact to verify your fanatical disregard for human life.

 

[Matabiri]

Criminal charges are not the standard. Padilla was being held as an enemy combatant. As such, he is subject to detention for the course of the conflict a priori. In fact, had Padilla came to the United States in uniform and in furtherance of an attack against a military target in accordance with the laws and customs of war the government would be prohibited from charging him with a criminal offense because of his combatant privilege.

Please forgive me if this has been covered elsewhere, but could you remind me who the US is at war with? That is, what uniform would Padilla have been wearing in your example?