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Padilla Case Finds a Justice System Failing to Adapt

Mukasey.jpg
Mukasey.jpg

US Attorney General Michael Mukasey (WDCPix)

Six years after 9/11, the jury is still out on whether the American justice system is up to the challenge of dealing with terrorism.

The persistent debate about water-boarding — which Atty. Gen. Michael B. Mukasey’s Senate testimony on Wednesday leaves no clearer — and the continual problem that is Guantánamo both require far deeper examination. But even the modest examples of success claimed by both the civil-libertarian left and the security-first right reveal the fragility of the U.S. system.

One story both sides now cite as a success is the case of former enemy-combatant Jose Padilla, sentenced last week by a federal judge in Miami to 17 years on terrorism-related conspiracy charges. His conviction draws (almost) to a close a saga that began May 2002, when Padilla was seized at Chicago’s O’Hare Airport. One month later, he was designated an “enemy combatant,” subject to indefinite detention without trial.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-300x300.jpgIllustration by: Matt Mahurin

While government lawyers laud his conviction as the successful punishment of a terrorist; civil libertarians herald it as proof that the criminal justice system works to bring terrorists to justice. Neither side, however, should be popping champagne corks yet. Padilla’s is a journey that casts a worrying light on a justice system that works poorly to protect civil liberties and also fails to further anti-terrorist goals. It should be cold comfort to both sides.

Padilla’s story, now relatively well known, needs only brief retelling. At the time of the arrest, Atty. Gen. John Ashcroft accused Padilla of planning a “dirty bomb” attack in the United States. He was held in military custody in South Carolina from June 2002 through January 2006. He was never given a hearing on whether Ashcroft’s claim — or an evolving sequence of accusations — held water.

As Padilla languished, his legal challenge to military detention ambled through the federal courts with the alacrity of a sea slug. In 2004, his first effort to secure Supreme Court review failed. Padilla, a five justice majority of the court ruled,, had sued in the “wrong” federal circuit court — so it ordered him back to “go” and don’t collect $200. This “technical” error, not apparent to most component lawyers and certainly not a necessary result, de facto sentenced Padilla to 18 more months of military custody while he filed the same papers in a different court.

Then, on the cusp of new Supreme Court review in late 2005, days before a government brief was due, Padilla was yanked from military custody. He was charged instead in an continuing criminal proceeding in Miami. The charges concerned a conspiracy to provide support to terrorism overseas — unrelated to Ashcroft’s original allegations. As the conservative Judge Michael Luttig wrote in refusing the government’s request to void the (pro-government) judgment on Padilla’s military detention, it was not a little troubling that the government’s claim of military necessity to seize and detain indefinitely a citizen in the homeland could “yield to expediency with little or no cost.” Luttig warned that the impression of playing fast-and-loose with claims of necessity “may ultimately prove to be [at] substantial cost to the government’s credibility before the courts.”

After last week’s sentence, the government can claim justice has been done. Meanwhile, civil libertarians can trumpet both the rule of law and the capacity of the federal courts to resolve complex terrorism cases.

Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

But these are only slim facets of the a larger story. Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

Consider the civil libertarian side of the ledger. It is not just that the government, by controlling the timing of Padilla’s criminal charges, secured a favorable judgment on the scope of its domestic detention authority—and then immunized this from Supreme Court review. It is also that Padilla’s story shows the judiciary’s incapacity to address human rights violations. After all, more than three years after his seizure, Padilla’s challenge was still slogging through the federal courts. The incapacity is not a practical failing. Rather, it is the fruit of 30 years’ assault on an “activist” judiciary that has created courts neutered of any ability to take on the government over divisive issues.

Delay here seems to have cashed out as practical discretion to abuse. Padilla has credibly alleged that during his detention he was denied medical care, threatened with death and subjected to sensory deprivation and temperature manipulation tactics that likely rank as torture. This did not happen on the night shift of an outlying foreign military base, but in a Southern naval brig. This means torture transpired yards from the Sabal palms, collard greens, and grits of coastal South Carolina. Yet there is little prospect that these accusations will ever be examined in open court. The U.S. government seems to have gotten away with the indefinite detention and torture of a U.S. citizen in the continental United States.

Nor is there much comfort on the national security side. Counting time off for time served and good behavior, Padilla can expect to serve about 13 years in ADX Florence, a maximum security facility near Colorado Springs, known as the “Alcatraz of the Rockies.” [] While no cakewalk, consider this: The mandatory minimum sentence for possession of five grams of crack cocaine is five years. Sentences for larger quantities escalate dramatically, spiraling well above Padilla’s term.

Even compared to other terrorism sentences, Padilla’s has an arbitrary flavor. Terrorism defendants who merely attended Pakistan training camps have received sentences almost twice as long. (Criminal offenses pertaining to terrorism generally carry high sentences imposed pursuant to minimal evidence of wrongdoing). Looking at the Justice Dept.’s track record, one gleans little confidence that charging strategies are much more than arbitrary. If Ashcroft’s allegations against Padilla are true, his sentence is grossly low, while lesser offenders continue to be slammed in cases with a political point-scoring stench.

The result is a justice system that has yet to deliver even one conviction of a person implicated in the 9/11 conspiracy or tethered to a major follow-up effort. That is, not one person has been brought to justice for 9/11.

True, many terrorists have alleged been interdicted (often by dubious means). But this is not the same as justice or the appearance of justice. It provides no accounting of what happened, what crimes were committed, or why “bin Ladenism” is wrong. It establishes no benchmarks for the other nations, no restoration of the damage wrought by 9/11 to our idea of an orderly world. Most critically, it fails to provide any sense of the U.S. commitment to an alternative to lawless violence. There have been nothing like the Nuremberg War Crimes tribunals after World War II, which restored the equilibrium of moral life by arguing that what the Axis powers had done was beyond the pale.

This is not about rhetoric. Poll after poll attests to the resonance that Osama bin Laden’s message continues to have for many peoples around the globe. By not seeking justice, the U.S. government cannot respond persuasively by showing its commitment to the rule of law, let alone narrating the wretched and psychopathic villainy of al Qaeda itself.

The Justice Department has already indicated its intent to appeal Padilla’s sentence to the relatively conservative Court of Appeals for the 11th Circuit.

Even with a friendly appellate panel, though, prosecutors face an uphill battle: Late last year, the Supreme Court made it harder to challenge criminal sentences on the basis of trial court error. So one of the conservative Supreme Court most important criminal procedure changes may result in immunizing Padilla’s sentence from challenge.

Whatever the facts of his case — whatever he did or did not do, — Padilla is not the satisfying symbol of justice triumphant that both sides of the current debate claim. Rather, he is a symbol of the unfinished business of national security reform more than six years after 9/11 — business that should be weighing heavily as the possibility of a new president again opens the door to reform.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of “Unchecked and Unbalanced:Presidential Power in a Time of Terror.” He has written for New York Law Journal, The Washington Post, The Huffington Post, The New Republic, The American Prospect and Democracy Journal.

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