I'm going to take a new approach to this writeup, which I expect to maintain for a while. The approach I'm going to take is segregating (most) of the analysis / opinion from a recording of the facts. Facts first, analysis / opinion after...

Last update October 1, 2002

Jose Padilla was taken into custody at the Chicago O'Hare airport on May 8, 2002 when he returned to the U.S. from travel abroad, including in Afghanistan and Pakistan. He was held as a material witness, under the order of U.S. District Judge Michael Mukasey of the United States District Court for the Southern District of New York. Padilla was held under this order until June 91.

During the time Padilla was held as a material witness, his case was secret, at least to the degree that the press was unaware of it. He did in this time have access to attorneys who were preparing to formally request that he either be charged with a crime or released.

On June 91, 2002, Jose Padilla was kidnapped by the United States military based on an executive order by George W. Bush, with the cooperation of the U.S. Department of Justice.

The Justice Department requested that the material witness order be voided. The judge did so, and the justice department handed Padilla over to the military. He was transported to South Carolina, where he is being held in a naval brig under the command of Commander Melanie A. Marr. Since the transfer, Padilla has had no access to communications, including communications with his lawyers.

On June 10, Attorney General John Ashcroft announced the detention of Padilla. He accused Padilla of being an agent of the al-Qaeda terrorist network. Specifically, it is alleged that Padilla returned to the United States, "exploring a plan to build and explode a ... 'dirty bomb,' in the United States." Padilla has been so accused, but has not been charged with any crime.

Padilla's attorney, Donna R. Newman has filed a "next friend" habeas corpus request to the court that ordered the material witness order. The judge is taking his time in reaching a decision, but at least that has allowed time for the ACLU to file a friend of the court brief.

The government has various procedural arguments as regards the habeas corpus filing, such as denying that Newman has proper standing as "next friend", arguing about who is the proper person to sue, and saying that the New York court does not have jurisdiction.

All of these arguments are secondary to the main point which the government is arguing in both the cases of Padilla and Yasser Esam Hamdi. President Bush has declared Jose Padilla an "enemy combatant", a designation which, like the "detainee" designation has no clear legal meaning. The argument is essentially:

  • An illegal enemy combatant is entitled to neither the constitutional protections of an accused criminal, nor to the Geneva Conventions' protections of a prisoner of war.
  • Determining who is an illegal enemy combatant falls under the war-making authority of the president, not subject to review by the courts.
To a great degree, the government is resting its legal case on the Supreme Court's Ex parte Quirin decision, which allowed accused German saboteurs in World War II to be detained and tried before a military commission.

  1. Some reports say June 6th, others say June 9th.

OK, now some analysis / opinion:

Obviously, there was one piece of opinion in the above, which is the use of the word "kidnapping". Using that word makes it clear that I do not believe the government has any legal standing to be detaining Jose Padilla.

I will not make any argument about the innocence of Jose Padilla. In a legal sense, he is innocent, because he has not been even charged with a crime, never mind convicted (except for the crime(s) for which he has already served his sentence). Nonetheless, I am quite willing to believe that he is a bad man, and quite possibly an enemy who wishes to kill many Americans.

In such a case, the government had legal options. They could have charged Padilla with a crime (such as conspiracy, or even treason, if they were ambitious). Or they could have put him under heavy surveillance, to find out what he was doing and who he was talking to. Should he have made phone calls suggesting places to blow up to other terrorists...

In any case, the badness of Padilla is not a legal issue.

I am not a lawyer, and cannot argue cleanly from the precedent of the Ex parte Quirin decision. The ACLU has argued that decision does not give the government the power it claims in the case of Padilla. This may or may not be true. I can also point out that the Korematsu decision which sanctioned the Japanese-American Internment Camps in World War II was decided in the same era. Neither precedent has been overturned, which, interestingly, seems to imply that it would be legal to round up every Muslim in Michigan and ship them off to a concentration camp in Iowa.

But that might be getting a little off track. There are two possibilities:

  1. What Bush, Ashcroft, Rumsfeld, and Commander Marr are doing is illegal. In this case, it amounts to kidnapping.
  2. What they are doing is legal. In this case, the U.S. Constitution is worth very little.
Why put so much weight onto one little case of a likely terrorist? Because the power being claimed is so extreme. The power being claimed by Bush et al. is the power to detain for any length of time any person they see fit.

The person in question does not concern me. There are many individuals who have had a bum rap in court, even when given their full constitutional rights. Padilla has only been locked up for around 5 months as of now, and is likely being treated humanely.

The power claimed does concern me tremendously. According to the administration, no court has a right to question the military's detention. If this is true, there is no legal roadblock for the President to lock up your Grandma because she smells a bit funny.

Even if, in order to do so, he has to say she's an enemy combatant.

We can all say, "Yes, but that won't really happen." I do find such things difficult to believe myself. But expressions such as, "the price of liberty is eternal vigilance" apply not only to threats from foreign enemies, but also to threats from domestic ones. The U.S. republic was founded on distrust of tyrants. We can't afford to sit quietly while this bit of tyranny--small in appearance, but large in implication--occurs.

Government's request to dismiss petition for habeas corpus:
Newman (as next friend of Padilla) reply to request to dismiss):
ACLU friend-of-the-court brief:

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