Verbosities

Concurring Opinions: Five Years On... How Significant is Padilla?

Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago's O'Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an "enemy combatant" until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.



Five years after his initial arrest, Padilla's criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla's criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding...



The system is working the way it's supposed to; it just took the better part of five years to get there, and much will turn on the extent to which this case becomes precedent over the next five years.

IANAL, but even I can see what's wrong with the claims above - which is ironic, because I found this linked from Instapundit, who actually is a lawyer or professor of law.



First, is "(t)he system working the way it's supposed to?" Well, that depends if you believe that the President retains the authority to pull American citizens off the street and throw them in jail without charging them with a crime. I'm going to say, for sake of posterity, that's wrong. Allow me to clip a piece from another Constitutional attorney, Glenn Greenwald in November 2005:

(T)he decision yesterday by the Administration to finally bring charges against U.S. citizen Jose Padilla -- who has been kept incarcerated in a military prison for three years solely on George Bush’s order, in solitary confinement and indefinitely -- was done not in order to signal a retreat by the Administration with regard to its claimed right to imprison U.S. citizens without any judicial processes, but instead, to protect and solidify that power by ensuring that its patent unconstitutionality cannot be ruled upon by the U.S. Supreme Court in the pending Padilla case.

Greenwald is speculating, probably rightfully so, that the only reason Padilla ever got charged with a crime was because the administration didn't want the Habeus Corpus fight landing in the Supreme Court. Rumsfeld v. Padilla had been winding its way through the courts, despite the best efforts of the administration to deny standing based on various technicalities (e.g., they tried to get the case dismissed because Rumsfeld lives in Virginia and the suit was filed in New York, among other technicalities).



So the system did work, I suppose, in spite of the administration's actions. That Padilla was finally charged with criminal acts did not happen until he had spent three years in solitary confinement in a military prison.



But what about the idea of "precedent" here? Is this criminal trial going to decide whether or not Habeus Corpus stays on the books or not? Is this criminal trial going to be a road map for prosecuting future alleged dirty bombers? Hardly. There are laws Padilla's been charged with breaking, and this trial is going to focus on whether the lawbreaking that has been alleged has actually occured. I'd actually bet at this point that the Habeus Corpus issues will be kept out of the courtroom, as they are irrelevant to the question of whether he broke the laws he is alleged to have broken.



I'm just cynical enough to believe that Padilla will be convicted of something bad enough so that he'll be thrown down a hole and forgotten for the next sixty years, whether he is technically guilty of that something or not. But I'm also just cynical enough to see that an endorsement of the ideas the Concurring Opinions blogger by the widely-read conservative Instapundit is setting the table for an implicit approval of Bush's authoritarian ideals in "law enforcement."



Basically, once Padilla is convicted of something, the meme will shift to, "we need to get these guys off the street by any means necessary," even if it means giving up freedoms guaranteed by our Constitution to do so.

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