December 5, 2007 12:37 PM
- Text
Padilla's Legal Limbo
(The New Republic)
This column was written by Jonathan Chait.
We will probably never know if [José] Padilla was a would-be terrorist," editorialized The New York Times last week. His "trial has been a reminder of how Mr. Bush's policy on prisoners has compromised the judicial process. And it has confirmed the world's suspicions of the United States' stooping to the very behavior it once stood against."
Well, yes and no.
It is certainly true that Padilla's trial is a big mess — a mess for which the Bush administration bears a lot of responsibility. Padilla, the American citizen long held in a naval brig as an "enemy combatant" and now facing trial in Florida on unrelated conspiracy charges, has claimed that long-term torture at the government's hands has left him incompetent to stand trial, a claim the judge last week rejected. In addition, Padilla has asked the court to dismiss the charges against him because of the allegedly outrageous government conduct toward him. What's more, he isn't even being tried for any of the most serious allegations against him — the reasons why he was originally detained — since the government denied him access to counsel for years, during which time, whether by torture or more acceptable interrogation methods, it extracted information from him that no court could constitutionally admit as evidence now. The government will be lucky to emerge with a conviction on charges that are a pale shadow of what it initially alleged.
But it is too easy to see the case, as the Times and other observers do, as simply another instance of Bush administration abuse with Padilla as a victim. Writing last week in Slate, Dahlia Lithwick thundered that, "This abuse has been futile — aimed at the wrong man and carried out for years. It has tainted the entire Padilla trial and degraded those who did the abusing." What's more, "at the end of the day, whether Padilla is tried, convicted, hospitalized, or set free, his whole sordid story stands for the single proposition that abuse begets more abuse."
Actually, it stands for something more — and more disturbing — than that: It stands for the proposition that, more than five years into the war on terror, America has no coherent legal strategy for thinking about those of its own who fight for the other side.
It may be hard to remember this now, but once upon a time, Padilla presented the government with a very hard case. Intelligence agencies had learned of him through the coercive interrogations of high-level Al Qaeda operatives overseas. He had a serious criminal record; as a juvenile, he had even been involved in a murder. And they had information that he was on his way here to conduct devastating terrorist attacks. Then, only eight months after September 11, 2001, he showed up at O'Hare International Airport in Chicago, Illinois, where law enforcement agents detained him as a material witness in a terrorism investigation. This was no John Walker Lindh or Yaser Hamdi — the two American citizens who were caught in Afghanistan as Taliban foot soldiers. Padilla was a genuine thug who had allegedly developed high-level Al Qaeda contacts and had been sent here to conduct operations. Five years after the fact, Lithwick can dismiss him as "the wrong man." But in 2002, no responsible government official could have regarded him as anything other than a most extreme threat.
The government, however, had a problem: It couldn't make a criminal case against Padilla. Its evidence consisted of intelligence that was both too sensitive to use in court and obtained by coercive means against other detainees. And Padilla himself wasn't talking. The decision to designate him as an enemy combatant and transfer him to military custody was an effort not merely — or even chiefly — to aggrandize executive power, but to prevent his release and to create a detention status under which agents could interrogate him and find out what he knew.
We will probably never know if [José] Padilla was a would-be terrorist," editorialized The New York Times last week. His "trial has been a reminder of how Mr. Bush's policy on prisoners has compromised the judicial process. And it has confirmed the world's suspicions of the United States' stooping to the very behavior it once stood against."
Well, yes and no.
It is certainly true that Padilla's trial is a big mess — a mess for which the Bush administration bears a lot of responsibility. Padilla, the American citizen long held in a naval brig as an "enemy combatant" and now facing trial in Florida on unrelated conspiracy charges, has claimed that long-term torture at the government's hands has left him incompetent to stand trial, a claim the judge last week rejected. In addition, Padilla has asked the court to dismiss the charges against him because of the allegedly outrageous government conduct toward him. What's more, he isn't even being tried for any of the most serious allegations against him — the reasons why he was originally detained — since the government denied him access to counsel for years, during which time, whether by torture or more acceptable interrogation methods, it extracted information from him that no court could constitutionally admit as evidence now. The government will be lucky to emerge with a conviction on charges that are a pale shadow of what it initially alleged.
But it is too easy to see the case, as the Times and other observers do, as simply another instance of Bush administration abuse with Padilla as a victim. Writing last week in Slate, Dahlia Lithwick thundered that, "This abuse has been futile — aimed at the wrong man and carried out for years. It has tainted the entire Padilla trial and degraded those who did the abusing." What's more, "at the end of the day, whether Padilla is tried, convicted, hospitalized, or set free, his whole sordid story stands for the single proposition that abuse begets more abuse."
Actually, it stands for something more — and more disturbing — than that: It stands for the proposition that, more than five years into the war on terror, America has no coherent legal strategy for thinking about those of its own who fight for the other side.
It may be hard to remember this now, but once upon a time, Padilla presented the government with a very hard case. Intelligence agencies had learned of him through the coercive interrogations of high-level Al Qaeda operatives overseas. He had a serious criminal record; as a juvenile, he had even been involved in a murder. And they had information that he was on his way here to conduct devastating terrorist attacks. Then, only eight months after September 11, 2001, he showed up at O'Hare International Airport in Chicago, Illinois, where law enforcement agents detained him as a material witness in a terrorism investigation. This was no John Walker Lindh or Yaser Hamdi — the two American citizens who were caught in Afghanistan as Taliban foot soldiers. Padilla was a genuine thug who had allegedly developed high-level Al Qaeda contacts and had been sent here to conduct operations. Five years after the fact, Lithwick can dismiss him as "the wrong man." But in 2002, no responsible government official could have regarded him as anything other than a most extreme threat.
The government, however, had a problem: It couldn't make a criminal case against Padilla. Its evidence consisted of intelligence that was both too sensitive to use in court and obtained by coercive means against other detainees. And Padilla himself wasn't talking. The decision to designate him as an enemy combatant and transfer him to military custody was an effort not merely — or even chiefly — to aggrandize executive power, but to prevent his release and to create a detention status under which agents could interrogate him and find out what he knew.
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