Today, we’ll take a look at the fate of two of the poster boys of perfidy, the icons of Islamist terror, the sum of all our fears, Unlawful Combatants Yaser Hamdi (a Saudi national born in Louisiana, making him also a U.S. national, picked up on the battlefield in Afghanistan) and Jose Padilla (an American national- a Chicago gang-banger who adopted a Moslem name, picked up on a flight back from Pakistan and alleged to be involved in a “dirty bomb” plot.)
Since the Government was ordered by the Supreme Court to afford Hamdi access to our legal system, it decided that this would involve, you know, having like an actual case against him. Hence, a quick deal is being worked out under which Hamdi would renounce his U.S. citizenship, be shipped to Saudi Arabia, and agree not to sue the government for his unlawful detention. I’m sure the sum total of the valuable intelligence learned during three years of interrogation from Hamdi can be easily summed up on the back of a cocktail napkin.
Unlike the Supreme Court, Hamdi’s case never bothered me all that much. Hamdi’s citizenship was quite literally an accident of birth. He considered himself a foreign national, and took up arms against our country.
While the government certainly abused the crap out of the rights Hamdi did have, his situation was not exactly one that keeps me up at night.
Compare and contrast Jose Padilla. Padilla was a born and raised U.S. citizen, picked up in the United States itself, charged rhetorically with a serious crime, but not afforded an actual charge, trial, counsel, or as we learned from the Supreme Court, when the Prez decides to go all Shiite himself against ex-Chicago gang-bangers, not subject to habeas corpus either (effectively, as the Court will manufacture procedural defenses for the Government). Here is the court docket of the new and improved habeas corpus case Padilla’s counsel have filed in South Carolina. The docket entries all look rather antiseptic and routine for what is really a Kafkaesque situation. I have said, and firmly believe, that the Supreme Court’s Padilla v. Rumsfeld decision means we are, quite ltierally, a dictatorship, and only the whim of the executive keeps any of us out of jail without any due process of law whatsoever.
Well, for Hamdi, it looks like the unlawful detention may be over before the end of this month. His confinement, and his release, will, of course, be quietly ignored as an election issue. And Mr. Padilla’s detention (not to mention thousands in our gulags world wide) will go on, again, ignored in our so-called free and democratic system. Chalk up another two for American respect for the so-called rule of law.
tdog
I’ve been pissing and moaning about Padilla since they first disappeared him but your post reminded me that I’ve been slacking lately.
Time for a new Padilla screed at my place.
You know, he may be guilty of everything from the kidnapping the Lindbergh baby to working as a concentration camp guard for all I know (and if he is guilty, then hang him) but absent a charge and some form of due process, I weep for my country.
Current commentators look to FDR’s administration for precedent but, alas, the fault lies with Lincoln.
Abe’s dictatorship during the Civil War makes W’s reign seem like a Libertarian paradise.
I used to believe I hosted the most important blog no one read (Notes on the Atrocities). It’s possible I was mistaken.
Good work.
I’m not sure I understand your assertion about the Court’s decision in Padilla, as distinguished from the Administration’s arguments in the case. Padilla simply stands for the well-established proposition that you have to file your habeas petition in the district in which your custodian is located. It *might* be a different issue if there was evidence that the government was repeatedly moving a detainee from district to district in order to frustrate the ability to file a habeas petition, but given that Padilla was moved to South Carolina to be placed in a Navy brig and kept there, there was no reason not to be able to file the petition in the District of South Carolina.
Padilla most definitely does not stand for the proposition that “we are, quite ltierally, a dictatorship, and only the whim of the executive keeps any of us out of jail without any due process of law whatsoever” — indeed, the federal courts are still exercising jurisdiction over the case; only not the Southern District of New York.
I too was troubled by the view that an American citizen arrested in the U.S. could be labeled an enemy combatant with no ability to challenge said designation. But that’s a different issue from the one you’ve identified, and I think you run the risk of distracting attention from the underlying important issue by making a fairly histrionic charge.
TY–
With all due respect (in the literal sense, as I have great respect for you and your views and your insights, as opposed to the common parlance usually used in court meaning “with no respect whatsoever”), NO.
The dissent had it right: the habe was filed in the Southern District at a time when Padilla was REASONABLY BELIEVED to be in the Southern District (a belief fostered by actions of my former employer, the Department of Justice). Padilla was not actually in the S.D.N.Y. ONLY because Rumsfeld– the FIRST NAMED RESPONDENT– moved him.
This is PRECISELY a situation where the government (which, as far as I know, never moved to dismiss the habe on venue grounds) played the very games to which you are referring. The Supreme Court has ruled innumerable times that it has the discretion to overlook this kind of venue game– if it feels like it (besides: venue is WAIVABLE– and the government’s conduct certainly could be construed here as a waiver of that defense, having itself not timely moved to dismiss on venue grounds.)
Mr. Padilla remains in custody, still to this day deprived of the opportunity to meet with counsel, or to be arraigned or charged, let alone have a trial date set at which the allegations against him must be proven beyond a reasonable doubt.
Worse, the government has made it clear it will rely on Padilla to play procedural games with respect to every single legal challenge brought by the Guantanimo unlawful combatant cases.
Sorry, but Ex parte Milligan has effectively been vacated by this Court. Unless and until Mr. Padilla is charged or released, that’s how it is.
The S.Ct.’s words in the companion cases were lovely: but until someone gets sprung, they are words and words only (obiter dicta)– and NOT THE LAW in any meaningful sense.
TD, we may end up disagreeing collegially on this one. But let me lay out a few points:
First, I don’t think we can say that the rule of law has not been followed unless Padilla gets sprung or charged criminally. It may be that *if* the government can actually prove (to whatever standard the Court determines is appropriate) that Padilla *is* an “enemy combatant” (whatever that actually means), then detention might be legal. The primary legal question as I see it is *who* gets to decide Padilla’s status. If the courts get to decide it and decide that Padilla is not an enemy combatant, *and* the Administration refuses to comply, THAT would be breaking the rule of law.
We should, perhaps, be skeptical of the government when it says, “Trust us,” about why an American citizen is being held incommunicado, and I think that the Hamdi case (which must be applicable to Padilla) exhibits some of that skepticism.
Second, as to whether the government played games by moving Padilla to S.C., I have a harder time seeing one transfer from heavily populated NY to a Navy brig in South Carolina as necessarily indicative of game-playing. I don’t mean to suggest that it can’t be, but I’d like to see more evidence. Since Padilla has remained in S.C., the weight of the evidence seems to me to point to security concerns, not game playing.
If the government were to move Padilla again, well, that may well be different.
Third, Milligan was seriously wounded by Quirin long before this Court got to it.
Finally, I’m not sure it’s fair to characterize reliance on Padilla as “procedural games.” Is reliance on a statute of limitations a procedural game? Or lack of personal jurisdiction? There are good reasons to disagree with the result of the decision in Padilla (though I must confess that I think the Court got it right), but it is the law of the land until overruled. Until that time, why shouldn’t the government be entitled to rely upon a decision in its favor?
Fair points all. We probably have to agree to disagree, but you seem to share my concern that an executive that believes he is empowered to incarcerate citizens without due process of law is… a bad thing.
As to procedural games, is ONE PARTY moving the location of something in what is, of course, an in rem proceeding, and then saying “Na na na na na” to the other party, based on that very move, “a game”? Yes. Yes it is.
Recall, Padilla was moved TO New York by the Government; he was originally picked up (and held) in Chicago.
Indeed, given that Padilla was not held pursuant to federal or state COURT MANDATE AT ALL, the Federal Habeas Rules themselves, in their entirety, are discretionary on the part of the Court, and frankly, 28 U.S.C. Section 1391(e), the regular federal civil venue statute, would have permitted the case to proceed in New York.
The High Court often has form trump substance– but let’s just say they have been unusually good contortionists lately.
TD, no need to burn more bandwidth on this — but I will confirm your sense: if the President thinks he can detain U.S. citizens without any due process of law, that’s clearly a bad thing. A more difficult question is who gets to decide what amount of due process is owed — for which I’ll just note that in Padilla’s case, unless Congress suspends the writ, I think the courts get to decide that. The sub-debate about whether it should be the SDNY or D.S.C. is, I think, of much less importance, which is why I disagreed with the tone of your assertion (in the original post). I do think, however, that it’s not unreasonable for you to view the government’s actions the way you do; I hope that you similarly think it’s not unreasonable for me to view the transfers as something less than sinister, based on the current facts (which could change if we had another sudden transfer to a different jurisdiction).
Well, to be fair to the Government, one of its original motions in Padilla (which Judge Mukasey denied) was, indeed, to transfer venue to South Carolina.
At the time, this tactic was (probably rightly) viewed as a cynical exercise to move Mr. Padilla out of the not particularly liberal Second Circuit into the even less liberal Fourth Circuit. I think both Judge Mukasey and the 2-1 Second Circuit majority (and the 4 dissenting Supreme Court Justices, making in all a total of 7 federal judges who thought SDNY venue was proper, and 6, albeit higher ranking judges, ruling venue was proper only in South Carolina).
Obviously, since the old Bush v. Gore case, the 5-justice majority has kind of lost the benefit of the doubt that it is doing anything other than making purely political, rather than legal, decisions.
My reading of the habe rules and 28 U.S.C. is that the venue defect simply did not deprive the court of jurisdiction; Secretary Rumsfeld having elected to move Padilla to New York, MADE New York an appropriate venue. If it were an academic exercise, I might be more inclined to consider the alternative view.
For whatever reason, I do note that most people are not nearly as upset with the Padilla result as I am. I think this is a mistake– and that the implications are VERY problematic.
Finally, as to Quirin, we were then in an open, all-out Congressionally declared war. IIRC, under prevailing international law at the time, we had the right to execute enemy combatants who showed up in our territory out of uniform trying to engage in acts of sabotage.
Further, the 8 saboteurs were tried and found guilty , before a military tribunal, with an appeal to a civil court (the U.S. Supreme Court, as a matter of fact).
Mr. Padiilla’s case is distinguishable from Quirin in every regard– indeed, distinguishable even from Kirimatsu.
It troubles me that the case will likely drag on through most of the next Bush Administration, with an American citizen still locked up without any rights whatsoever.