Appeals Court Refuses to Transfer Padilla

Associated Press ^ | December 21, 2005 | Toni Locy

[AntiGuv]

WASHINGTON - In a sharp rebuke, a federal appeals court denied Wednesday a Bush administration request to transfer terrorism suspect Jose Padilla from military to civilian law enforcement custody.

The three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals also refused the administration's request to vacate a September ruling that gave President Bush wide authority to detain "enemy combatants" indefinitely without charges on U.S. soil.

The decision, written by Judge Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month.

Luttig said the administration has risked its "credibility before the courts" by appearing to use the indictment of Padilla to thwart an appeal of the appeals court's decision that gave the president wide berth in holding enemy combatants.

Padilla, a former Chicago gang member, was arrested in 2002 at Chicago's O'Hare Airport as he returned to the United States from Afghanistan. Justice and Defense Department officials alleged Padilla had come home to carry out an al-Qaida backed plot to blow up apartment buildings in New York, Washington or Florida.

[xzins]

How do I know that Abdullah Muhajir (Padilla) is an enemy combatant?

Because the alternative is ridiculous.

That we took this random young ignorant kid exiting a plane and decided to make his life hell.

That doesn't pass the common sense test. There's no value in the government doing that.

Both his passport and his plane ticket would show his travels. Why do you think this former gang member and jailbird and convert to Islam who traveled in Egypt, Pakistan, and Afghanistan should not at least be considered suspicious even if we lack all the detailed info in the possession of the government?

[xzins]

This person was an enemy combatant. It matters not that it was against his own country. He was captured during the execution of his mission. He was immediately placed in a military prison to demonstrate this point.

His attire and his mission put him in the position of infiltrator spy, and that makes him immediately eligible for execution.

[jwalsh07]

I find Scalia to be refreshingly courageous and originalist in his writings on this topic.

Then you must take one of two positions. Either the CIA/Military guys who fired the missile, as well as all in the chain of command that ordered it, should be charged with murder in the Sudan incident where an American jihadist was blown to bits while not pointing a gun at anybody or rights as an American citizen are geographically dependent.

Which is it?

[jwalsh07]

If the only thing we were interested in was saving lives, we should have surrendered to Osama, Saddam, and whoever else threatens us a long time ago. If we begged for our lives and did as we were told, I'm quite certain more of us would survive than will when we fight our enemies.

A ridiculous position belied by the many pictures of Jews climbing aboard trains, the gulags, the killing fields of Cambodia and on and on and on.

[jwalsh07]

Citizens have inviolable rights that supercede the executive's war-making powers.

Hyperbole, there are no inviolable rights while there certainly are absolute truths. Padilla is getting his due process so all the talk about watering the liberty tree blah, blah is just so much garbage from those who do no watering.

Why don't you enlighten us all and tell us how many citizens have filed court cases based on abuse of the Patriot Act? And then tell us how many citizens have been jailed by the tyrant Bush. And finally, why don't you tell us how the courts will guarantee our liberty if Bush was indeed a tyrant. They would enforce their opinion how?

[thoughtomator]

Not only do I honestly believe it, I am absolutely certain of it, as would any other person who understood cryptography.

[ndt]

"Joining the military or voting in an election in a foreign nation may be construed as a renunciation of citizenship."

You are correct in that there needs to be an intention on the part of the person to relinquish it. While a good argument could be made that it is inherent in the act of waging war with a foreign military against the U.S. Barring a formal declaration of renunciation by the citizen, proving intent in this case would be very high bar.

from INA Sec. 349. [8 U.S.C. 1481]
"A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality- "

P.S. Great arguments, I'm glad to see you.

[ndt]

"Not only do I honestly believe it, I am absolutely certain of it, as would any other person who understood cryptography."

OK. you lost me. I understand cryptography, I use it every day.

How does the existence of cryptography preclude the use of evidence in court?

[Valpal1]

You are conflating the Declaration of Independance with the Constitution. Documents that were written a decade apart with a war intervening.

While the Declaration may have been a suicide pact in that if the war failed they would surely all hang, but the Constitution, written after a victorious rebellion and after the first attempt at self government via the Articles of Confederation most assuredly was not a suicide pact.

You are blowing smoke out your ass.

[ndt]

Please explain the process where by the constitution suspended. Do include:

1) The circumstances that makes this legal
2) A list of the agencies and entities that have this power
3) Citations of the laws that give them these powers

Failing this, you are calling for an overthrow of the government, a traitorous position, punishable by execution.

[dsc]

"Are you seriously hoping to see an armed conflict between US Federal Marshals and US military personnel on American soil?"

If that's what it takes to reduce the liberal judiciocracy to one of three co-equal branches of government again, then yes. I certainly wanted to see it after Janet (female rapist) Reno kidnapped Elian Gonzales.

[thoughtomator]

In cryptography, the objective is to keep the messages secret. The enemy's objective is to break the code and determine what the messages mean. The more clues you give as to how your messages are encrypted, the easier it is for the codebreaker to succeed. However, if the people who are encrypting their messages discover that their code is broken, this destroys the value of breaking the code, as the message senders will simply switch to another code. This is why, for example, why we didn't use all of the intelligence that we gained from breaking the Enigma cipher - because acting on information that could only have been gained by breaking the cipher would have let the Germans know it was broken - destroying our ability to gain further information through the broken Enigma code.

In the instant case, in order to prosecute Padilla in a civilian court, a discovery phase is mandatory. In the discovery phase, the prosecution must reveal to the defense the information they have that proves the case. During wartime this means that in order to have such a trial, we must necessarily reveal what we know about Padilla's terrorism links - and in the process, giving vital clues to the enemy as to how we know it.

If the discovery process reveals to the enemy the methods we are able to use successfully to obtain intelligence, this will cripple our ability to gain further intelligence by those channels and put at mortal risk our agents in the enemy camp. The enemy will stop using the methods and means of communication that are vulnerable to interception. The end result of this is dead US soldiers and spies and a diminished ability to pursue the war (which is the end goal of the alleged "civil liberties" crowd).

So in the end, it is a question of what is more valuable - giving Padilla a civil trial, or wartime intelligence. I have no problem with giving Padilla a civil trial after the war is over (though it may be decades). Thus I conclude that the military justice system, being able to keep secret information secret, and also being more appropriate to the subject - Padilla is accused of an act of war against the US, after all - is a more appropriate venue, given the crimes alleged of Padilla.

[Valpal1]

The constitution has not been suspended by declaring Padilla an enemy combatant and placing him in military custody. His rights were not violated because he dispensed of them himself waging war on the U.S.

Who decides who is an enemy combatant? The President and the military, not the courts. The courts have no business micro-managing a war or the military.

The courts should have stayed the hell out of this instead of opening a can judicial review worms. They have crossed the seperation of powers line and created a big fat mess.

Last time I checked, the rights guaranteed by the constitution can only be suspended by a declaration of martial law. Declaring someone an enemy combatant is micro scale martial law.

Lesson to be learned: Don't engage in acts of war against the U.S.

[ndt]

"In cryptography, the objective is to keep the messages secret. The enemy's objective is to break the code and determine what the messages mean."

In this instance I think you have that backwards unless you are saying that the terrorists are trying to break into the NSA. I would like to think that the NSA has that base covered. But your general point is noted.

"This is why, for example, why we didn't use all of the intelligence that we gained from breaking the Enigma cipher - because acting on information that could only have been gained by breaking the cipher would have let the Germans know it was broken - destroying our ability to gain further information through the broken Enigma code"

Encryption today makes Enigma look like a Blue Hornet© Decoder Ring. However, in some ways it is much simpler. There is no need to arduously create a cipher every time that you need to change the code, the keys are generated automatically.

Are you suggesting that after 3 years, A.Q. has not changed changed their keys? That is absurd.

"Padilla is accused of an act of war against the US, after all - is a more appropriate venue, given the crimes alleged of Padilla."

Just curious, what do you think those crimes are?

[ndt]

"The constitution has not been suspended by declaring Padilla an enemy combatant and placing him in military custody. His rights were not violated because he dispensed of them himself waging war on the U.S."

The whole point of the trial is to determine whether he was waging war on the U.S.

Until that is proved the rest of your argument is moot, and until that is proved as a U.S. citizen, he has inviolable rights.

There is no such thing a "just a little" martial law.

[NJ_gent]

"That doesn't pass the common sense test. There's no value in the government doing that."

What, exactly, was the value of the government's actions at Waco? What was the value in burning American citizens, including children, alive? Do you seriously trust everything your government does? Or do you just trust it implicitly when it's guys you like at the top? Do you think the FBI cleans house and gets all new people in place after each election? Or did the same group that burned people alive in Waco also take Padilla into custody? Do the CIA and NSA get all new people each year? Or are the same people providing intelligence on Padilla who provided intelligence on the state of Iraq's weapons programs? As President Reagan said, trust but verify. You've got the trust part going, but there's only one way to verify that citizen Padilla is the bad person the government claims he is.

"Both his passport and his plane ticket would show his travels. Why do you think this former gang member and jailbird and convert to Islam who traveled in Egypt, Pakistan, and Afghanistan should not at least be considered suspicious even if we lack all the detailed info in the possession of the government?"

Probably to learn to be a terrorist. Has probably ever been enough to lock Americans in prison forever before? Of course not. Charles Manson and Tim McVeigh both caused a lot more deaths than Padilla ever has, so why is it that they got regular civilian trials and Padilla has received nothing but roadblocks in the quest for airing his side of the story? Tim McVeigh did essentially what Padilla is now accused of trying to do: destroying buildings. Does it make any sense whatsoever that those who try to do something get no trial and no lawyer while those who succeed get all the normal protections of the US justice system?

That's been the government's position all along: that Padilla, who never blew up anything, has less rights than Tim McVeigh, who levied war against the Federal government and completely obliterated a Federal building.

[NJ_gent]

"This person was an enemy combatant."

How do you know? Because the President said so? What if the next President says Rush Limbaugh is an enemy combatant? Are you going to tell us then that you believe President Hillary because the President has the exclusive, unquestionable authority to determine who is and who isn't an enemy combatant?

"He was immediately placed in a military prison to demonstrate this point."

I'm afraid that's incorrect. He was held by civilian authorities in a normal jail facility for a month under a material witness warrant. It was only when the material witness warrant was about to be quashed in court that he was transferred to military custody.

"His attire and his mission put him in the position of infiltrator spy, and that makes him immediately eligible for execution."

Which brings us right back to President Hillary. Since you're willing to rely soley on the Presidential determination for the designation and the accusation, you not only want her to have the rightful authority to jail Rush Limbaugh indefinitely without question or judicial interference, but you now want to give her the authority to have government agents march into his office and murder him? My God, just how powerful do you want to claim the executive is?!

[Valpal1]

The whole point of the trial is to determine whether he was waging war on the U.S. That should be determined by a military tribunal, not a civil trial, and not by a judge meddling in military matters. The courts are for criminals. I do not believe the criminal model is correct for waging war on terrorism. I voted for GWB's military model for war on islamofascist terror and I stand behind it. I'd like the unelected courts to butt the hell out.

[ndt]

You know, I am beginning to think we disagree :)

[NJ_gent]

"Then you must take one of two positions. Either the CIA/Military guys who fired the missile, as well as all in the chain of command that ordered it, should be charged with murder in the Sudan incident where an American jihadist was blown to bits while not pointing a gun at anybody or rights as an American citizen are geographically dependent. Which is it?"

Personally, I have no issue with what took place in Sudan. I'd have no problem with US soldiers, per rules of engagement, killing a threatening American citizen on the field of battle. Where Scalia draws the distinction, and what I believe is reasonable, is when said American is within custody and no longer an immediate threat. For instance, if John Walker Lindh pointed a gun at a US Marine on the field of battle, that Marine has every right to defend himself with deadly force. To expect anything less is absurd. However, once he's in custody, and his citizenship has been determined to be distinctly American, it makes a certain amount of sense that he should have rights above and beyond those of other national origins. Depending on the circumstances, that person may have relinquished their citizenship, and all rights that come with it.

Now, that's not to say the military should be forced to drop what they're doing or put themselves in extra danger to accomodate US citizens while within a warzone. However, at the convenience of the US military, and while it is safe for military peronnel to do so, I do think US citizens captured abroad should be transported to the nearest facility capable of more properly dealing with them. That doesn't mean I don't believe in treason, and it doesn't mean I don't believe that those who shoot our soldiers on the battlefield should be able to walk away. In fact, I would hold that there's a very special place in Hell for such people. The military already does a lot of detainee processing and data gathering so that it isn't left holding tons of people it has no interest in holding. As such, I don't see it as overly difficult or imposing to have the military work slightly harder to preserve the spirit of the idea that US citizens are, in our eyes, better than citizens of other countries.

My point with all this is that I do think US citizens' rights should be upheld to the greatest extent possible without risking soldiers' lives, and that I do think there should exist a higher burden of proof for wrongdoing for US citizens than for citizens of other countries.

As it relates to Sudan, the individual was not in US custody, and their citizenship could not be absolutely determined under the circumstances. Attempting to do so would risk lives and be an unnecessarily high burden on the military. In my opinion, so long as it was not a US citizen who was intentionally and primarily targetted (in other words, just a US citizen riding alone in a car down an empty road) there is no legal issue with launching the strike. The citizenship of those surrounding legitimate military targets should not block legitimate military action.

As it relates to Hamdi and Lindh, if they were shooting at US troops, US troops should shoot back and shoot to kill. They're not there to read the USC sections relating to citizenship to potential citizen combatants; they're there to render the enemy unable to kill and to protect one another. Lindh or Hamdi can yell about their citizenship all they want, but if they continue to threaten US troops on the battlefield, they need to be taken prisoner or killed as per the rules of engagement and the UCMJ. Once they've been removed from the field of battle and they no longer pose a threat, then deal with the fact that they're citizens. How their detention and trial is to go should be a matter for Congress to codify into law. Thus far, we've had Lindh's high-powered defense team strike a deal with civilian prosecutors, and Hamdi stike a deal with the government to keep him out of US courts. That seems like a pretty half-arsed system to me.

In Padilla's case, a US citizen was captured on US soil. In no case should the US military have anything to do with it, unless the lawful authority in the immediate area has been actually overthrown.