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Thursday, May 17, 2007

The Anticlimactic Trial of Jose Padilla


JURIST Guest Columnist Stephen Vladeck of the University of Miami School of Law says that for all the attention being paid to the trial of Jose Padilla, the proceeding will not address the critical legal question of whether the US government can subject one of its own citizens to indefinite military detention...
The central problem with the federal criminal prosecution of one-time alleged “dirty bomber” Jose Padilla, now underway in Miami, is that the trial itself will not provide any resolution to the real question that the Padilla case has always raised: Whether the U.S. government can subject U.S. citizens arrested on U.S. soil to incommunicado military detention (and, allegedly, to mental and physical abuse while in military custody).
The reason why the Padilla trial will provide no resolution of this fundamental question is simple enough: Federal district judge Marcia Cooke, who is presiding over the trial of Padilla and his two co-defendants, has made clear over a series of pre-trial rulings that Padilla’s military detention is completely irrelevant for purposes of his criminal trial, so long as the government does not introduce any evidence obtained in conjunction with that detention. All too willing to comply, the government itself has embraced this bifurcated understanding of Padilla’s confinement, going so far as to argue that the Justice Department cannot be held responsible for any unlawful actions of the Department of Defense — that the right hand simply can’t be called to account for the actions of the left.
Legally, Judge Cooke may well be correct. The government is not attempting to introduce evidence obtained from Padilla during his 1307-day stay in a South Carolina Navy brig, and so the question whether that detention (or any of the government’s actions toward Padilla during it) was unlawful would not seem to implicate any aspect of the criminal charges Padilla now faces. In effect, then, the criminal case against Padilla has proceeded upon the theory that his “incarceration” began the day he was transferred to the custody of the Department of Justice in January 2006.
But what about the previous three and a half years?
The question of the legality of Padilla’s military detention as an “enemy combatant” divided the four courts to consider it. In the first round of litigation, the Southern District of New York held in December 2002 that Padilla’s detention was authorized, a decision reversed by the Second Circuit one year later. After the Supreme Court vacated the Second Circuit’s decision on jurisdictional grounds and ordered Padilla to re-file his habeas petition in South Carolina, the South Carolina district court held that Padilla’s detention was unlawful, only to be reversed by the Fourth Circuit in September 2005. And it was just before the merits of Padilla’s case returned to the Supreme Court that the government indicted Padilla and sought to transfer him to civilian criminal custody, leading to the Supreme Court’s divided decision to deny certiorari last April. As Justice Kennedy wrote for himself, Chief Justice Roberts, and Justice Stevens,>>>>cont

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