Friday, August 17, 2007

Michael Isikoff on Jose Padilla

Most balanced piece I've seen yet on the subject.

I'm open to the argument that the question of trans-national combatants (non-identified with any nation-state) does not work within the framework of nation-state law. I think we should make sure that is the case before immediately jumping to the conclusion, a la this administration, that it is not.

Someone like Padilla, who was clearly, whatever else he may or may not have been, not a leading light of the al-Qaeda movement (if he was at all connected with them).

If it is true, that nation-state systems are not currently built to handle, let's say the higher "ups", the most dangerous terrorists, than I think the obvious solution is the ICC. That will immediately get some people's nerves up (on both left and right)--fearing loss of sovereignty and/or questions of transparency and democratic checks. The parallel for me is Nuremburg.

I'd rather than "rendition" to governments we know will torture and/or use of our own black sites (e.g. Eastern Europe) to do the torturing ourselves. For low-level recruits, I think the US justice system could work. I don't see any proof from the Padilla case that terrorists gained massive insight into our surveillance, police, or military defense systems.

What the Padilla case point is how corrosive the enemy combatant Bush/John Woo model has been (extended quotes--my emphasis):
Defense lawyers for Padilla are almost certain to appeal, including challenging the core question of whether their client was competent to stand trial in the first place. For three and half years after being declared an “enemy combatant” by President Bush, Padilla was held incommunicado in a barren nine-by-seven-foot cell in a military brig in Charleston, S.C. He was cut off from all contact with the outside world (including his own defense lawyers) and subjected to unusually harsh treatment that would never have been permitted if he had been a normal defendant—including allegedly bombarding him with loud noises, keeping his cell at extreme temperatures and other techniques designed to break down his defenses and force him to talk.

The techniques apparently worked. Padilla eventually confessed to joining Al Qaeda even as he denied some of the more sensational claims—about planning to set off a dirty bomb—that U.S. government officials once made against him. (The government was never able to use his statements in court because they were obtained through extraconstitutional means.) But the impact of the U.S. military’s interrogation techniques left him, according to the testimony of two mental-health professionals hired by his lawyers, so psychologically traumatized that he feared talking to anyone, including his own lawyers (who he apparently suspected might be government agents trying to spy on him).

Throughout his trial, the high-profile defendant sat impassively, barely speaking a word and showing not the slightest reaction (or even comprehension) of any of the evidence being presented by the government against him. “It was almost like he was a piece of the furniture,” said one courtroom participant, who asked not to be publicly identified talking about the defendant. When the jury verdict was read today, Padilla—dressed in a dark suit—watched the proceedings intently, but once again said nothing and showed no emotion.

The verdict leaves open the wisdom—and constitutionality—of the decision by the White House to first declare Padilla an enemy combatant, a move that arguably stands as the single most audacious act of the Bush presidency in the war on terror...

As an enemy combatant, who Bush said posed a “continuing, present and grave danger” to the country, Padilla was to be held indefinitely without being charged with a crime or given any right to defend himself while the U.S military interrogated him. It was only three years later, fearing that the Supreme Court would declare the president’s move unconstitional, that the President Bush signed an order transferring Padilla back to the custody of the Justice Department and paving the way for him to be indicted and finally tried in a court of law.
In one sense, the jury’s verdict is a welcome shot in the arm for a Justice Department that has been demoralized of late both by legal setbacks in other terrorism cases and the continued tribulations of Attorney General Alberto Gonzales. But while seeming to vindicate the administration’s initial claims that Josè Padilla was indeed a dangerous man, the jury verdict could also bolster arguments that the same result could have been achieved from the start by simply keeping him within the criminal-justice system and treating him like a normal terrorism defendant—without making the extraordinary claims of executive power that the White House did in declaring a U.S. citizen an enemy combatant.
And what by the way is "extra-constitutional?" Is that different from illegal?

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