Jose Padilla And Lowell Jacoby

by hilzoy

Yesterday, Jose Padilla was found guilty:

"A federal jury convicted former "enemy combatant" Jose Padilla on Thursday of terrorism conspiracy charges, handing a courthouse victory to the Bush administration, which had originally sought to imprison him without a criminal trial.

Padilla was arrested in 2002 for allegedly plotting a radiological "dirty bomb" attack, but prosecutors chose not to pursue those allegations in court here. But after a three-month trial, they had convinced the jury that Padilla, 36, participated in a South Florida-based al-Qaeda support cell that in the '90s began to send money and people to wage holy war in Bosnia, Chechnya, Kosovo and Somalia.

Padilla and co-defendants Adham Hassoun, a Lebanese-born Palestinian, and Kifah Jayyousi, a naturalized U.S. citizen from Jordan, were found guilty of one count of conspiracy to murder, kidnap and maim overseas, an offense with a maximum penalty of life in prison. They also were convicted of one count of conspiracy to provide material support for terrorists and one count of material support for terrorists. Sentencing is set for Dec. 5."

Judging by the press reports, the evidence was weak and the jury somewhat odd ("On the last day of trial before the Fourth of July holiday, jurors arranged to dress in outfits so that each row in the jury box was its own patriotic color -- red, white or blue.") Moreover, the NYT reports this disquieting detail:

"The jurors, seven men and five women from Miami-Dade County, would not speak publicly at the courthouse and left through a side entrance. But one juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began.

“We had to be sure,” the juror said in Spanish. “We wanted to make sure we went through all the evidence. But the evidence was strong, and we all agreed on that.”"

However, rather than dwelling on the verdict, I want to focus instead on a memo (pdf) that Marty Lederman posted at Balkinization a few days ago. It's the single most shocking document concerning this administration's attitude towards the Constitution that I have seen thus far. It's from Lowell Jacoby, Director of the Defense Intelligence Agency, and it is an explanation of why Jose Padilla should not be allowed access to counsel. Bear in mind that the Sixth Amendment holds that "In all criminal prosecutions, the accused shall (...) have the Assistance of Counsel for his defence." Of course, Padilla was not at that time charged with any crime, which is why one might have thought that the Fifth Amendment might have been relevant: "No person shall be (...) deprived of life, liberty, or property, without due process of law." Possibly there are exceptions for prisoners of war, but Padilla was arrested at O’Hare International Airport in Chicago, not in the mountains of Afghanistan.

Note the absence, in both the Fifth and Sixth Amendments, of any qualification like: "so long as it is convenient for the government to provide access to counsel", or: "so long as no important government purpose depends on depriving a person of life, liberty, or property without due process of law." The fact that the government has some interest or other in putting me in prison and throwing away the key cuts no ice unless they can convict me of a crime, or in some other way satisfy the due process clause. Arguing that they cannot provide me with due process because that would itself be inconvenient for them is just not an option.

One way or another, American citizens like Jose Padilla are simply not supposed to be disappeared on US soil, far from any actual battlefield, and held incommunicado. They are supposed to be granted access to counsel, charged with a crime or released, and granted a speedy trial by a jury of their peers. There are no exceptions for suspected al Qaeda members. These are rights enjoyed by completely appalling people like Jeffrey Dahmer, Ted Bundy, and Charles Manson; and by traitors like Aaron Burr and Benedict Arnold. They are granted to every United States citizen (and others, but they are not relevant here.) They, along with habeas corpus, are what prevents the government from being able to toss us in jail at will and keep us there indefinitely without having to account for its actions.

That is what is at stake here: the protections that prevent our government from acting like the Soviet Union or the Pinochet regime or any other dictatorship. These are the freedoms we allegedly cherish, and for which we allegedly fight. They are our birthright, and an inheritance we must never allow to be squandered. With that in mind, consider these words by the Director of our DIA, an official paid by our tax dollars to work for our government:

"DIA's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example -- even if only for a limited duration or for a specific purpose -- can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process. (...)

Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. DIA's assessment is that Padilla is even more inclined to resist interrogation than most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla.

Because Padilla is likely more attuned to the possibility of counsel intervention than most detainees, I believe that any potential sign of counsel involvement would disrupt our ability to gather intelligence from Padilla. Padilla has been detained without access to counsel for seven months -- since the DoD took control of him on 9 June 2002. Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break -- probably irreparably - the sense of dependency and trust that the interrogators are attempting to create.

At a minimum, Padilla might delay providing information until he believes that his judicial avenues have been exhausted. Given the nature of his case, his prior experience in the criminal justice system, and the length of time that has already elapsed since his detention, Padilla might reasonably expect that his judicial avenues of relief may not be exhausted for many months or years. Moreover, Padilla might harbor the belief that his counsel would be available to assist him at any point and that seven months is not an unprecedented for him to be without access to counsel.

Any such delay in Padilla's case risks that plans for future attacks will go undetected during that period, and that whatever information Padilla may eventually provide will be outdated and more difficult to corroborate.

Additionally, permitting Padilla's counsel to learn what information Padilla may have provided to interrogators, and what information the interrogators may have provided Padilla, unnecessarily risks disclosure of the intelligence sources and methods being employed in the War on Terrorism.

In summary, the United States has an urgent and critical national security need to determine what Padilla knows. Padilla may hold extremely valuable information for the short-term and long-term security of the United States. Providing Padilla access to counsel risks the loss of a critical intelligence resource, and could affect our ability to detain other high value terrorist targets and to disrupt and prevent additional terrorist attacks."

Marty Lederman glosses this correctly:

"In other words, legal process must be entirely denied Padilla so that he will come to think that all hope is lost -- that he is in a world without law or due process. As long as he even thinks that he is subject to the Constitution and laws of the United States, the "relationship" of "trust and dependency" is broken."

When this document was written, the government had already held Jose Padilla incommunicado for seven months. They had already had more time than they should have to produce that "atmosphere of dependency and trust" that Director Jacoby thinks is so important. Moreover, whatever information he might have had was surely becoming dated. So even if one thought that government interests were appropriately weighed against some of the most important freedoms protected by the Bill of Rights, those interests had become attenuated by the time Jacoby wrote this.

But that is beside the point. The most basic freedoms we have, which surely include the freedom not to be thrown in jail without charge, deprived of counsel, and left there indefinitely, should not be bargained away for any government interest. There are limits to what the government can do to us because it decides that something is important, and this is one of them.

This is one more direct assault by this administration on our Constitution and our freedom. It is shocking that a government official could write this document, and shocking that it has not produced anything like the outrage it deserves.

Jose Padilla has been convicted of a crime. But for my money, Lowell Jacoby and those who think as he does are the greater threats to our country.

Comments

[rilkefan]

Not a liberal or a conservative position - an American one.

[Gary Farber]

Setting aside the larger problem that most citizens aren't taught at all, let alone thoroughly, in elementary school, or junior high, or high school, what civil liberties are, and what the hard-fought history in this country of gaining them has been, and what they mean and how essential they are to defining ourselves -- aside perhaps from a cursory few hours -- the immediate problem is that a huge number of citizens thought processes demonstrably seem to only go so far as this: "But he's a terrorist! Do anything to him!"

And, assuming they don't pause to indulge in fantasies of elaborate torture, they're on to the next subject.

That's hard to break through, especially given what I said to set aside for a moment.

Schools need to thoroughly teach what freedom is actually made of, that it requires the rule of law, and how our laws have evolved, and why, and what injustices they've helped prevent, and why if America is to mean anything, it has to value these values.

And, of course, politicians also have to teach it. But that requires more bravery, and eloquence, than most possess.

In the short term, I have to fall back on the classics: organize, organize, organize.

[cleek]

Arguing that they cannot provide me with due process because that would itself be inconvenient for them is just not an option.

evidence suggests otherwise.

your only hope now is that the executive branch fears the political outcome of snatching you more than it fears the political outcome of not snatching you. it should be obvious to all that staying useful and beneficial to the current occupant of the White House is your only defense against capricious imprisonment and torture.

be a good citizen. do your part.

long live the republic.

[A.L.]

I completely agree. The Jacoby declaration is astounding. It's our government asserting in federal court that it has to be able to hold Padilla without process because it is the only way to crush his soul. As I wrote in response to Marty's post, it's like Jeffrey Dahmer arguing that he had to cut his victims' heads off because it was the only way to fit them in the freezer.

That is to say, it's an ends-justify-means argument in which the ends are as repulsive as the means.

[Steve]

As Justice Scalia said in his Hamdi dissent, if the government really believes that wartime exigencies require a U.S. citizen to be held indefinitely without trial, then the President can ask Congress to suspend habeas corpus. Otherwise, charge him with a crime or let him go.

Bed-wetting conservatives can't seem to grasp the notion that the Founders were quite familiar with the notion of foreign threats to this country. They drew not only on their own experiences, but England's centuries of experience with traitors and people accused of being traitors. They wrote down this set of rules for a reason.

[janinsanfran]

The people who issued the orders for this conduct and those who "just followed orders" to do these things should be tried in the Hague. I rather suspect that, despite being afforded all the trappings of law and lawyers, they'd be convicted under our treaty obligations -- in any case, there is no doubt whatsoever that our current regime has long been convicted in the court of world opinion. We will all pay the price for that.

Meanwhile, perhaps it is time to invoke the emerging international legal doctrine of responsibility to protect since our internal mechanisms seem unable to deal with the "crimes against humanity" emergency developing in this country.

Okay, I don't think that last is going to happen, but thought doesn't seem far-fetched.

[OCSteve]

Hilzoy: Eloquent as always. Man this is a punch in the gut though. I think I have to sleep on this. I am so proud of being a Republican for so many years…

[dmbeaster]

There is a clear cut legal remedy for what was done to Padilla -- you dismiss the case against him due to outrageous government conduct. The most famous example of the application of this principle was the Daniel Ellsberg case for violating his security clearance by releasing the Pentagon Papers. His criminal case was dismissed because the government burgled his psychiatrist's office for info to use against Ellsberg (as well as other bad behavior).

The misconduct toward Padilla was far more egregious. The motion to dismiss was made in the Padilla case on this grounds, and denied by that judge. The judge denied the motion on the grounds that the doctrine was allegedly limited to entrapment cases, and in any event, the outrageous government conduct here was separate from the criminal proceedings. The judge created a fiction in which the confinement as an enemy combatant has nothing to do with criminal proceedings for being a terrorist. Or the exclusionary rule was his sole remedy, and the government was not trying to use info obtained from that confinement against him -- a perverse "no harm no foul" ruling.

Like in Korematsu, the courts frequently don't have the backbone to stand up to illegal government conduct undertaken in the name of national security.

[Equal Opportunity Cynic]

It is shocking that a government official could write this document, and shocking that it has not produced anything like the outrage it deserves.

I know this is nothing new -- dating back to at least Benjamin Franklin -- but it just keeps driving home how freedom requires a certain level of due diligence to maintain it. The public isn't willing to be bothered with such trifles, not when American Idol or this week's Game of the Century is on. As a result the public will end up getting the level of freedom it deserves and has chosen to invest in.

I wish that those of us who cared about this could move somewhere (New Hampshire?) and enjoy America as we were brought up to believe it was, but as long as the federal apparatus has the ability to intrude that solution doesn't seem very helpful.

[Equal Opportunity Cynic]

The people who issued the orders for this conduct and those who "just followed orders" to do these things should be tried in the Hague. I rather suspect that, despite being afforded all the trappings of law and lawyers, they'd be convicted under our treaty obligations....

Shouldn't be necessary. Like a good libertarian I'm suspicious of supranational pseudogovernments, but that's not really even the point. The Constitution and federal and state criminal law provide ways to prosecute torturers. No one has the spine to actually haul them into court, hell, no one has the spine to fire them through impeachment. It's not that the US Constitution is insufficient to deal with such a grave danger; it's that so many extra-Constitutional loyalties have sprung up, especially the one to one's own party.

Until we're governed by people who love the Constitution more than their party, this is what we'll get. And we won't get there until we're willing to buck the system and start turning all the incumbents out. All of them.

[Gary Farber]

"I am so proud of being a Republican for so many years…"

[Gary looks for nice things to say about Republicans, to try to make OCSteve feel better.]

I think Abraham Lincoln was one of our greatest President, flaws included; I take a pretty conventional view.

Teddy Roosevelt was a very mixed bag, but setting aside a variety of specific disagreements and criticisms, though often more of his beliefs than his policies, I think he was also highly admirable, as well as occasionally despicable, but that overall he did tremendous good for the country, and was one of the greats.

Eisenhower had admirable aspects, and did some good things I admire (as President; I mean; as a general doesn't count as credit towards being Republican).

I'm trying to find more Republicans to praise....

Oh, yeah, I was a Republican for for the period of going to the Republican caucuses to vote for John Anderson in 1980, until the general election. Anderson was quite admirable.

I could find some smatterings of Representatives over the years, if you'd like. Um, and Senator Margaret Chase Smith had some moments.

Am I hurting, or helping?

Alternatively, there are those I've respected as men and women of principle, even while disagreeing with some of those principles. :-) Barry Goldwater goes there, for instance.

(We just probably shouldn't argue about Reagan, as at this point I'd feel like I'm kicking your puppies; it might not stop me, but I'd feel kinda bad. :-))

[OCSteve]

Thanks Gary. I appreciate the effort there. Normally I would come back at you, but I just don’t have it in me right now.

[OCSteve]

Man oh man. What have I enabled here?

[Jeff]

so that he will come to think that all hope is lost -- that he is in a world without law or due process.

"He will come to think... he is in a world without law or due process"? He was in a world without law or due process. Who can he sue for cruel and unusual punishment?

[OCSteve]

Hilzoy: I’ve told you more than once how much your writing has impacted me: None more than today. The shrillness of FDL and Kos etc. can be impressive, but they won’t move me off my position. Your posts can. It is not an immediate thing, you just keep me coming back, and eventually you get to me. You should offer a course in this…

[crimelord]

Why do you cite Aaron Burr as a traitor?

[Slartibartfast]

Why do you cite Aaron Burr as a traitor?

Wikipedia sez:

While historians are uncertain as to Burr's particular activities, he was accused in turns of having committed treason, of a conspiracy to steal Louisiana Purchase lands away from the United States and crown himself a King or Emperor, or of an attempt to declare an illegal war against Spanish possessions in Mexico (a process known then as filibustering). Burr was arrested in 1807 and brought to trial on charges of treason, for which he was acquitted.

Maybe traitor-ish, then.

[Slartibartfast]

He made a heck of a TV attorney, though.

[Ugh]

the subject-interrogator relationship

Just like the attorney-client relationship.

Should I ever meet Jacoby, I vow to spit in his face and call him a fascist. In fact, I need a list of such people, which sadly likely includes people I know personally.

[Gary Farber]

"He made a heck of a TV attorney, though."

That was his kid, who went on to become one hip police chief of detectives dude, as well.

[hilzoy]

OCSteve: thanks; that means a lot, from you especially.

(Fwiw, I, too, was a Republican in 1980, for Anderson. Then I forgot to change my affiliation back until it was too late for the '84 elections, and so I got to write in my sister for President, and the ex-love of my life for Congress.) (And him not even a citizen! Not even a resident...) (That's why I wrote in my sister for President she wasn't 40, but at least she met a few of the criteria for President.)

[Tom S]

Heh:

I registered as a Republican to vote for Anderson in the Maryland Republican primary. Unfortunately, he went independent a week later, so I voted for Bush Sr. In my defense, this was when he was calling Reagan's proposed tax policies "voodoo economics."

[DaveC]

Sheikh Omar Abdel-Rahman pretty much ruined the case for civil liberties for terrorists, as did Abu Hamza al Masri did in the UK. The "enemy combatant" designation and policies are a result of Rahman and Masri gaming the legal system in such a way that they could continue to direct terrorist activities, even after they were known to be terrorists, and in Rahman's case, in from prison.

[DaveC]

Sheikh Omar Abdel-Rahman pretty much ruined the case for civil liberties for terrorists, as did Abu Hamza al Masri did in the UK. The "enemy combatant" designation and policies are a result of Rahman and Masri gaming the legal system in such a way that they could continue to direct terrorist activities, even after they were known to be terrorists, and in Rahman's case, in from prison.

[CharleyCarp]

DaveC, that's an argument you might make about KSM, but for the likes of Padilla, or the 350 schmoes in Gitmo, it shows a paranoia running into mentally ill territory. Padilla wasn't ever going to direct anyone to do anything.

[DaveC]

Well that's a tricky call to make. If Padilla was actively planning a terrorist action, and had associates in country, I would be in favor of cutting of any means of communication between them.

As far as Gitmo guys go, I'd be in favor of classifying Taleban fighters as POWs, even though Afghanistan was a state sponsor of terrorism - the Taleban schmoes were probably just foot soldiers in Afghanistan. I wouldn't, however, set Al Qaeda recruits free. Sorting out who is what certainly is taking a long time.

[Steve]

Cutting communication strikes me as a red herring. There are a million things we can do to prevent prisoners from directing terrorism from inside prison, short of putting them in a sensory deprivation chamber for years. It's really not an answer to say "sorry, one naughty terrorist ruined the Constitution for everyone."

[Hartmut]

I wonder what would have happened, if the jury had acquitted Padilla. I have images of men with ill-fitting business suits waiting for him at the door to re-disappear him floating through my mind ("Der kommt nach Dachau").

[Phil]

Sheikh Omar Abdel-Rahman pretty much ruined the case for civil liberties for terrorists, as did Abu Hamza al Masri did in the UK.

Anything that happened in the UK is utterly irrelevant to Constitutional protections for American citizens, of which Padilla still is one regardless of what criminal activities he has been convicted of. Not to mention that tossing Padilla into some scheme under which he suffers from some loss of "civil lberties for terrorists" before he has even stood trial, let alone been convicted, assumes the conclusion before it has been reached.

It's like you conservatives always say: You want to change the law? Amend the Constitution. Until you do that, Padilla has the same Constitutional protections as you or I do, and that's that.

[Brett Bellmore]

"Judging by the press reports, the evidence was weak..."

Judging by the press accounts, the jury didn't think so. Judging by your post, you find the fact that the jury disagreed with the press "disquieting".

Indeed, the evidence was altogether damning, and that the press might describe it as being "weak" says disquieting things about the press.

[OCSteve]

Phil: Until you do that, Padilla has the same Constitutional protections as you or I do, and that's that.

Yup. This is a hard one for me. I’m very happy he was found guilty, delighted in fact. But that memo… This is the United States of America? I remember how some folks would run inside right before Reveille or Taps on base, like it was a chore to stop and salute the flag for a minute. Not me. It was an honor and I always had a little shiver of pride. I still stand and salute when they play the anthem at a baseball game.

At least I used to.

[Phil]

Brett, is this the same jury that dressed in coordinated red, white and blue? Frankly, they should all have been immediately dismissed and a new jury seated.

[Brett Bellmore]

Right, because nobody can get a fair trial from a patriotic jury. Sorry, guess the defense lawyer forgot to ask about that during jury selection.

[Brett Bellmore]

Look, reality check: They caught him in the first place because an al-Quaeda higher up who was captured spilled the beans about him being on a terrorist mission, and accurately relayed where to find him. And the feds also had his application to join al-Quaeda, complete with fingerprints.

Guilty, beyond even an unreasonable doubt. To even suggest that the case against him was weak is bizzarely dishonest.

[CharleyCarp]

Sorting out who is what certainly is taking a long time.

Especially because they're not engaged in this effort.

If Padilla was actively planning a terrorist action, and had associates in country, I would be in favor of cutting of any means of communication between them.

No one thought this ever. It's all very well to make up excuses for people that have no relevance to the actual facts. Except that it shows a certain motivation on your part.

Guilty, beyond even an unreasonable doubt. To even suggest that the case against him was weak is bizzarely dishonest.

I haven't followed it as closely as some, but I'm less troubled by the verdict itself than many. There was horrible misconduct on the part of the government, misconduct for which, in my mind, those responsible should definitely be held accountable. This, though, doesn't mean Padilla didn't do what they said he did in the indictment.

I do, however, have real concerns about competence issues. I would hope that the appeals court will take a close look at the rulings on that.

[Anarch]

Brett: Indeed, the evidence was altogether damning...

How the heck do you know?

Or, to be more constructive about it: cite, please.

[CharleyCarp]

Brett, is this the same jury that dressed in coordinated red, white and blue? Frankly, they should all have been immediately dismissed and a new jury seated.

I would have moved for a mistrial, and I think the case for one is colorable at least. The problem isn't that jurors are patriotic, and the display shows more than just patriotism. Jurors aren't supposed to be doing anything but listening and watching. They're not supposed to be discussing the case with each other, and they're not supposed to be sending signals to anyone. I'd want to know who's idea it was, and what they said to the others to get them to do it.

[Anarch]

The problem isn't that jurors are patriotic, and the display shows more than just patriotism.

I'd say that that wasn't patriotism at all; it's a superficial display of vindictive nationalism (viz. the woman being sure he was guilty before even walking into the courtroom), which is something altogether different.

[dmbeaster]

Sheikh Omar Abdel-Rahman pretty much ruined the case for civil liberties for terrorists, as did Abu Hamza al Masri did in the UK. The "enemy combatant" designation and policies are a result of Rahman and Masri gaming the legal system in such a way that they could continue to direct terrorist activities, even after they were known to be terrorists, and in Rahman's case, in from prison.

The same reasoning applies to criminal gang members, who are know to continue their criminal enterprises from prison -- so they should be denied all civil rights too?

Your reasoning is baseless -- there is no such thing as "enemy combatant" status for US citizens.

[Brett Bellmore]

Anarch: "viz. the woman being sure he was guilty before even walking into the courtroom"

Actual news story:"But one juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began."

She had her mind mostly made up before the deliberations began, not before entering the courtroom. You're not demanding that she pay attention during the trial, you're demanding that she shut her mind off during it, and not think about whether the guy was guilty or not during three months of evidential overkill.

[CharleyCarp]

Brett, I don't know if you read Unqualified Offerings. If not, you might like it: it's a libertarian blog. Anyway, this http://highclearing.com/index.php/archives/2007/08/18/6982>post notes evidentiary issues that might prove important on appeal.

[KCinDC]

Brett, after they'd been holding Padilla for years and forced by the court ruling to change their planned handling of him entirely, I don't think it's unreasonable to believe that a government willing to abuse the man to destroy his personality would also be willing to get his fingerprints on a document.

This government has destroyed its credibility in cases like this. That's a big problem, since there are is a terrorist threat, but it's a problem the government has brought on itself (on all of us) by abandoning American principles.

Of course I'd be excluded from the jury because I hold such opinions, but the jury pool of people who actually believe this government's statements about terrorist suspects is shrinking. But presumably there'll always be enough 28%ers, or 5%ers, or whatever, to make up a red, white, and blue jury.

[OCSteve]

The problem isn't that jurors are patriotic, and the display shows more than just patriotism.

Well, not being a lawyer I don’t have any problem with the jury showing some patriotism on the Fourth. It’s the country’s birthday; you’re doing your duty as a citizen, etc. I can understand the impulse. Having served on a jury twice now I know firsthand that jurors talk during breaks, lunch, etc. And coordinating dress for a national holiday hardly rises to the level of some kind of conspiracy.

Were folks equally suspicious when Libby’s jury dressed up for Valentines Day? I don’t recall anyone raising these kinds of questions at that time…

I have no problem with the trial, the jury, or the verdict – just with the government’s actions leading to that point.

[KCinDC]

OCSteve, I can't remember the Bush administration playing the "love card" against opponents of perjury the way they've invoked patriotism against those opposed to their antiterrorism policies.

In any case, yes, the Valentine's Day stunt did make me question the seriousness and competence of the Libby jury. I certainly wouldn't participate in such a thing if I were on a jury.

[Brett Bellmore]

Ok, yeah, you're so suspicious of the government at this point that you wouldn't convict him no matter what evidence they produced, because you'd have a (To your mind, anyway.) 'reasonable doubt' that it was faked.

IOW, your mind is closed. Yup, you're right, you don't belong on a jury.

[Phil]

Ha ha! Suddenly the "disenchanted libertarian" is Public Fan #1 of the Federal government. Go figure.

[Ugh]

I wonder what would have happened, if the jury had acquitted Padilla.

This is part of the reason why I was hoping he would be acquitted (and hope now the judge sentences him to time-served). I really want to see what the Bush administration would do, and whether the MBFs at places like Bizarro World,* would cheer them on if they re-declared him an enemy combatant and threw him back in the brig.

And I retract my spitting vow up above, although not the fascist part.

*My one man google-bomb continues.

[Gary Farber]

"My one man google-bomb continues."

Since comments don't get measured by google, trying to do so with comments is as useful as trying wrapping labels around your cutlery for Google to scan.

Until next year's GoogleHouseCrawler device comes out, of course.

But really, trying to Googlebomb with comments: hahahahaha.

Er, sorry. Not gonna work.

[KCinDC]

Well, comments on some sites might be effective for Google bombs, but not the comments here, because the site (like many, probably most, other blogs) is set up to mark them as "nofollow" (a misnomer that should actually be something like "noweight" or "norecommend"). You can see it if you view the HTML source.

[Jesurgislac]

DaveC: Sheikh Omar Abdel-Rahman pretty much ruined the case for civil liberties for terrorists, as did Abu Hamza al Masri did in the UK.

While we've gone further than I like in passing legislation that makes it easier for the police to treat terrorist suspects as if they were already convicted, and much further than I like in cooperating with US allegations that so-and-so is a terrorist, the notion that the UK would get panicky and stupid enough to repeat the errors of the early years of the IRA is just wrong. (At least, I hope it's wrong. But we have the bad example of the US panic/stupidity in front of us, and I'd hope* our government would learn from that bad example as well as from previous experience.)

*Given how pathetically spineless the current government has been in standing up to the US's bullying and bad example, I sometimes think I'm wrong to hope. Still. We are not yet as bad as the US, and I hope we never will be.

I wouldn't, however, set Al Qaeda recruits free. Sorting out who is what certainly is taking a long time.

It's already been done, Dave. "Sorting out" isn't the problem. Getting the US to end its policy of criminal detention is the problem.

[Steve]

Surprising that Brett thinks the fingerprint evidence was overwhelming. I wonder if he's aware that they only found Padilla's fingerprints on the first and last page of the document, consistent with him being given the document to handle at some point, but completely inconsistent with him actually filling it out.

The appeals court won't review that sort of thing, mind you. What's likely to interest them more is the fact that he was tried alongside two other guys who seemed more clearly guilty; often you're entitled to a separate trial in such circumstances so you aren't guilty by association.

Also, of course, there's the issue that he may have been tortured so severely that he was no longer capable of assisting in his own defense.

I hope the appellate decision leaves me feeling better about this case, one way or the other.

[Turbulence]

The red, white and blue clothing display wouldn't bother me IF I knew that everyone on the jury clearly distinguished between America the country and the American government. If you can't tell the difference between those two, then the color coordination stunt is tantamount to declaring that you've taken sides.

I know many people that have trouble with this distinction. They tend to say things like, "we have to support the President because we're at war" right before excusing literally anything that the government does. I don't think a jury composed of such people could possibly be impartial.

The Libbey jury's Valentine's day arrangement doesn't bother me as much. I've never heard of it before though; is it possible that many members of the jury independently decided to wear red on their own? In any event, I'm not troubled by the coordination needed to get people wearing particular colors of clothing.

[KCinDC]

Via RBC, this:

[Padilla] had developed really a tremendous identification with the goals and interests of the government. [...] For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were “unfair to the commander-in-chief,” quote/unquote. And in fact, one of the things that happened that disturbed me particularly was when he saw his mother. He wanted her to contact President Bush to help him, help him out of his dilemma. He expected that the government might help him, if he was “good,” quote/unquote.

[dmbeaster]

This is part of the reason why I was hoping he would be acquitted (and hope now the judge sentences him to time-served).

Regardless of the sentence, will the judge give him credit for time served? Under her reasoning to date, the detention was for military confinement that has nothing to do with the criminal process.

If she admits the confinement was part of the criminal process, it opens up countless other legal issues, such as the right to a speedy trial. That was 100% violated if the confinement was in connection with criminal charges. The government has to maintain the illusion that the two were entirely separate activities, or it is legally dead in the case.

[Anarch]

You're not demanding that she pay attention during the trial, you're demanding that she shut her mind off during it...

Uh, no. I made a mistake by reading too quickly; you're the one who's eviscerating a straw man of your own devising. I realize it's ironic given the circumstances but please, try to read more carefully.

[Nell]

@OCSteve: I didn't say anything about it publicly at the time, but I had the same reaction on learning that the Libby jurors had (with one exception, later dismissed as a juror) dressed in red for Valentine's Day.

Which is: Judges should instruct jurors at the beginning of a trial that any organized attention-getting stunts or displays are out of bounds. Jurors are not to call attention to themselves, period, much less do anything that might in any way be construed as a statement, or bring into question their objectivity.

For all I know, the Padilla jury got the idea by reading about the Libby jurors. A "folk tradition" that needs to be nipped in the bud; too much is at stake.

[Nell]

The fundamental point of the Padilla trial is this:

The government brought charges against Padilla only to avoid a Supreme Court ruling that would likely have confirmed that they cannot hold a U.S. citizen incommunicado, with no access to a lawyer, without any due process whatsoever, and without any charges.

Having dodged that ruling, the regime continues to maintain that it has these powers.

I hope to live long enough to see the day when there is once again a broad understanding -- on the part of the public, the press, and all three branches of government -- that the executive branch does not have any such powers.

[OCSteve]

Turbulence: is it possible that you and I agree for once? ;)

Nell: I agree with you. (“"folk tradition" that needs to be nipped in the bud”). I agree with the rest of your comment as well. I was just struck by the lack of comment when they did it during the Libby trial and this. I mean I can actually rationalize the Forth, but Valentines Day is nothing but a Hallmark Holiday – so the shenanigans seem much more important there.

[KCinDC]

OCSteve, if you agree with Turbulence, then it seems you recognize that Valentine's Day isn't generally something that's been politicized, so I don't understand why you'd think "shenanigans" related to it would be more important.

[Brett Bellmore]

Steve, that the feds occasionally frame somebody is so well established that I'd assume the bad faith of anybody who ventured to deny it. And I'd go so far as to say that, were Padilla actually innocent of any wrongdoing, he'd be a prime candidate for a frame.

What I wonder, though, is what would lead anybody to suspect in the first place that Padilla was innocent? Just the context of his capture alone is enough to render that presumption dubious.

[Gary Farber]

"A 'folk tradition' that needs to be nipped in the bud; too much is at stake."

This would be cleared up if we simply issued Star Trek uniforms to all jurors in all trials to wear.

[Gary Farber]

"What I wonder, though, is what would lead anybody to suspect in the first place that Padilla was innocent? Just the context of his capture alone is enough to render that presumption dubious."

Innocent or guilty of precisely which crimes, Brett?

That actually matters. Trials aren't held on the state of people's souls, and we generally frown on trials for what people are thinking, in theory, although in practice that seems to be entirely prosecutable these days in many circumstances. "Conspiracy" often means that people have committed only the crimes of thinking and speaking.

Perhaps that's merited, perhaps not, but I'm unclear what crimes you believe are obvious from the "context of his capture alone."

Presumably you agree that "lock him up, I'm sure he's guilty of some 'wrongdoing'" isn't valid reasoning, after all.

[Phil]

What I wonder, though, is what would lead anybody to suspect in the first place that Padilla was innocent?

Who here has claimed that Padilla is innocent of any wrongdoing? As opposed to having claimed that the government's actions should have led to a "Not Guilty" verdict?

[Hartmut]

What plays a role is that the outrageous charges ("dirty bomber") were dropped without comment while serving as the prior justification of the whole incommunicado thing.
Smells like a "we have to charge him with something" that will not be laughed out of court immediately.

[KCinDC]

Gary, you forgot the link, for those whose memories are short.

[Jesurgislac]

Brett: What I wonder, though, is what would lead anybody to suspect in the first place that Padilla was innocent?

Well, the jury would (I presume) have been directed by the judge to presume Padilla innocent unless the prosecutor could show, beyond reasonable doubt, that Padilla was guilty of the crime of which he was accused. Does that answer your question? (As others have already noted, the circumstances of Padilla's detention ought to have had the judge declare him not guilty and require him set free - which is rather different from "presumed innocent until proven guilty", which again is rather different from "known for a fact to be innocent of any wrong-doing".

Just the context of his capture alone is enough to render that presumption dubious.

I didn't know that landing at Chicago O'Hare airport was enough by itself to render a person presumptively guilty of "conspiring to kill people in an overseas jihad and to fund and support overseas terrorism". I have myself landed at Chicago O'Hare airport, back in the old days when non-citizens were treated like tourists instead of criminals: does this mean I should be assumed to be a terrorist? Or does this only apply to all US citizens who land at O'Hare having travelled in the wrong countries?

[Gary Farber]

KCinDC: "Gary, you forgot the link, for those whose memories are short."

I was assuming it was still sufficiently in the public popular memory, true, but I'm probably judging poorly because of my own biases, so thanks.

[Hartmut]

Never heard of that incident but took the star trek uniform as reasonably neutral 8though the 1st directive could be interpreted as critical of Bush).
Is there any fundamental objection against a dress code for jurors (but no wigs! ;-) )?

[Brett Bellmore]

"As opposed to having claimed that the government's actions should have led to a "Not Guilty" verdict?"

You know, I'm not really comfortable with the idea that a guilty aspiring terrorist should be set free on the basis of the government having misbehaved. What we really need is a good mechanism for going after government misdeeds. Maybe reforming the grand jury so that they're no longer puppets for prosecutors. Of course, giving juries real power is directly contrary to the whole trend in modern legal culture; If they could figure out a way to dispense with juries entirely, I'm sure they would.

Jes, by context I don't mean his landing on a plane, I mean what caused them to pick out THAT person landing on a plane: That he was fingered by a higher up in al-Quaeda during interrogation.

[Rufus]

The jury did not have the gonads to find Padilla not guilty. I have lost my faith in juries because unless they have a strong individual in the group, they will find for the government every time. Never forget "Twelve Angry Men." They either want to get it over with and get out of there, or they are afraid of being identified as being soft on crime/terrorism. So, let's just find the poor bastard guilty, and we can get out of here and look our neighbors in the eye. Disgusting.

[Phil]

You know, I'm not really comfortable with the idea that a guilty aspiring terrorist should be set free on the basis of the government having misbehaved.

Replace the loaded term "aspiring terrorist"* with the word "accused criminal," then please ask yourself why I -- or, heck, anyone -- should take this statement in any way seriously.

*WTF is a "guilty aspiring terrorist," anyway?

[KCinDC]

Phil, I think the idea is that when the government misbehaves, or makes a mistake, it's not appropriate to punish society by letting a guilty person go free -- that the judicial system is supposed to be about finding the truth, and such an action undermines that function. The argument on the other side, which is the one that's won (for now, at least), is that there's no other way to sufficiently discourage government -- that, for example, cops who find evidence illegally that convicts a murderer aren't going to be deterred by punishment, and probably aren't actually going to be punished.

[KCinDC]

Phil, I think the idea is that when the government misbehaves, or makes a mistake, it's not appropriate to punish society by letting a guilty person go free -- that the judicial system is supposed to be about finding the truth, and such an action undermines that function. The argument on the other side, which is the one that's won (for now, at least), is that there's no other way to sufficiently discourage government -- that, for example, cops who find evidence illegally that convicts a murderer aren't going to be deterred by punishment, and probably aren't actually going to be punished.

[Anarch]

does this mean I should be assumed to be a terrorist?

Yes.

That just applies to you, though (:

[Jesurgislac]

Brett: Jes, by context I don't mean his landing on a plane, I mean what caused them to pick out THAT person landing on a plane: That he was fingered by a higher up in al-Quaeda during interrogation.

Well, right there, I'd say that's enough context to tell me he's probably exactly as guilty as Moazzam Begg or Mahar Arar, no more, no less.

[ajay]

“We had to be sure,” the juror said in Spanish.

In Spanish? So this poor guy was judged by people who couldn't speak enough English to manage a simple sentence?

[Gary Farber]

ajay: "In Spanish? So this poor guy was judged by people who couldn't speak enough English to manage a simple sentence?"

What leads you to conclude that this man can't "speak enough English to manage a simple sentence"?

Does the ability to speak Spanish, or a preference for it, preclude an ability to speak English?

Or was the man's inability to speak English described in a part of the article I keep missing?

Or do you believe that all people who speak Spanish do so because they can't speak English?

Or what?

I'm trying to figure out what you derive your stated conclusion from, and failing. Can you elaborate, please?

[cleek]

You know, I'm not really comfortable with the idea that a guilty aspiring terrorist should be set free on the basis of the government having misbehaved.

twist away.