A Terror Threat in the Courts

JOSE PADILLA, the so-called dirty bomber, is expected to be sentenced by a federal judge in Miami this week, and judging from the reaction to his conviction last summer the case will be hailed by many as a triumph of the use of criminal law as the primary weapon against domestic terrorism. The White House will no doubt reiterate its view that the prosecution of Mr. Padilla, a United States citizen, upholds “a core American principle of impartial justice for all.” But the White House has been far from alone in praising the verdict.

Perhaps because the argument over Mr. Padilla and other detainees had centered for so long on the Bush administration’s apparent reluctance to afford them any rights at all, even Mr. Padilla’s defenders in the criminal defense bar praised the prosecution. Donna Newman, Mr. Padilla’s first lawyer, said that the trial “shows you can bring forth the evidence and try someone in court.” Jenny Martinez, who represented him before the Supreme Court, wrote that the “trial showed that our federal courts are perfectly capable of dealing with terrorism cases.”

But are they? A closer look at the Padilla case and other terrorism prosecutions reveals, to the contrary, that the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself.

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred.

After all the hand-wringing, he REACHES A LOGICAL CONCLUSION, saving the best for last: I don’t question that people like Jose Padilla...pose an unacceptable risk to public safety. But their prosecutions...cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.
...considering norms of criminal law and the paucity of evidence the government had at the time, its only alternative was to leave him free. Law enforcement should have had another choice.
Imagine what might have happened had the government not detained Mr. Padilla back in 2002 — if he had carried out a large-scale bombing, killing thousands, and if it had emerged later that the government had had information implicating him and done nothing. Would that have been a risk worth taking? Scotland Yard took that risk when it put surveillance on, but failed to detain, the future London subway bombers.

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

Federal Conspiracy charges apply when the Govt. can prove "knowledge of" or "profit from" a crime. The sentences for such charges can be draconian. 30 years is a common sentence.

Preventive detention???

This guy wants to give government the power of preventive detention?

He is nuts.

Anyone who would stand the Constitution on its head to implement such a governmental power is a fascist...and an idiot.

Such laws already exist. It is called the Laws of War. This exact issue was decided by the Supreme Court in 1943 where they upheld the conviction and hanging of the six Nazi saboteurs. They were tried before a Military Commission and actually not broken any civil law. One of the six was a US citizen.

Military Commissions and the Laws of War were provided for clear back in the 1700s because civil law cannot cope with what actually happens in war.

At the end of WWII the chief justice was appointed to preside over the Military Commission held at Nurenburgh.

If it was unconstitutional, why did he do that?

Ex parte Quirin

While the United States and Germany were at war in 1942, Richard Quirin and seven other German soldiers were trained in the use of explosives and secret writing at a sabotage school near Berlin and set on a mission to destroy war industries in the United States. Four of them were transported by German submarine to Amagansett Beach on Long Island. They landed under cover of darkness in June 1942, carrying a supply of explosives and incendiary devices. At the moment of landing they wore German uniforms, but they immediately buried their uniforms on the beach and went in civilian dress to New York City.

The remaining four who had been trained at the sabotage school were taken by another German submarine to Ponte Vedra Beach, Florida. They too landed in German uniform, but proceeded to Jacksonville in civilian dress. All eight saboteurs were ultimately arrested by the FBI in New York or Chicago.

President Franklin Roosevelt appointed a military commission to try Quirin and his cohorts for offenses against the laws of war and the Articles of War enacted by Congress, and he directed that the defendants have no access to civil courts. While they were being tried by the military commission, which sentenced all of them to death, they petitioned the Supreme Court of the United States for review of the procedures under which they were being tried. The Supreme Court convened in a special term on July 29, 1942, to hear arguments in their case.

One of the principal arguments made by able counsel for the petitioners was that, at the time of their trial, the civil courts throughout the United States were open and there had been no invasion of any part of the country. Therefore, relying on the Milligan case, the petitioners argued that the government could not resort to trial by a military commission. Counsel noted that one of the petitioners, Herbert Haupt, had been born in the United States and was a United States citizen. At the conclusion of the arguments in the case, and after deliberation, the Court on July 31st announced its ruling upholding the government’s position, but its full opinion did not come down until October 1942. In that opinion the Court stated:

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, . . . that the law of war “can never be applied to citizens and states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” . . . We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as . . . martial law might be constitutionally established.

The Court’s opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries . . . .

http://www.freerepublic.com/focus/f-news/570022/posts

It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries ...

Padilla was in the same position.

He is a US Citizen, the same as one of the German saboteurs.

He came here to do spying and sabotage

He was not in a Military uniform.

He had allegiance to other than the United States.

He was captured before he had accomplished what he came to do.

What would differentiate him from them?

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