March 2, 2005 1:08 AM   Subscribe

So, what now? Do they charge him? He's an American citizen who's spent 2½ years in custody - charged with no crime - without his lawer, access to due process, habeas corpus, etc. He has no constitutional safeguards and can be held like that because the president says he can be held like that. Who says the president has that power? The president does. Could he have even made a "dirty bomb?"
posted by Smedleyman (29 comments total)
And what happened to
the other guy?
posted by Smedleyman at 1:09 AM on March 2, 2005

Recommended listening on this subject from This American Life: (03/2004)

"Chris Neary tells the story of how a bungled Nazi sabotage operation from the early days of World War II has become the legal foundation for the Bush administration's current push to try U.S. citizens in military tribunals. But when you return to the original facts of the case, it's not only unclear if they support current Administration policy, it's unclear if they support the Supreme Court's decision in the original case. The attempted sabotage operation was chronicled in Washington Post reporter Michael Dobbs's excellent book, Saboteurs: The Nazi Raid on America. (36 minutes)"
posted by scarabic at 1:21 AM on March 2, 2005

I wonder how much of the ensuing debate will focus on whether or not he's a terrorist instead of whether or not it's constitutionally acceptable to detain someone indefinitely without being charged or having access to a lawyer, terrorist or not.
posted by shmegegge at 1:23 AM on March 2, 2005

The most terrible thing about all this is that it takes two and a half years before a court can grow enough of a spine to tell the Bush administration that what it's doing is wrong. The context in which this is happening, however, takes the teeth out of it -- it's treated the same as some lesser allegation, even though it is an extreme case of denial of basic rights, which completely undermines the system of justice in the USA many people still believe in. I was floored when this started happening, and even more so when absolutely NOTHING happened for years.

Anyone remember where that documentary appeared where non-American journalists visited Guantanamo? Was it BBC?

On preview, what shmegegge said.
posted by sninky-chan at 1:42 AM on March 2, 2005

As citizens, this is one of those things we have to work hard to nip in the bud. We need to make sure this is an isolated incident -- let this become the trend, and America won't be worth living in any more.

Some things are not worth sacrificing for security. This is one of those things -- detention without trial is wholly unacceptable.
posted by teece at 1:44 AM on March 2, 2005

sninky-chan: you mean this docu?

teece: with at least 540 suspects still in Guantanamo this is not an isolated incident..
posted by borq at 3:08 AM on March 2, 2005

The Padilla case has always struck me as one of the more extreme examples of this administrations conviction that the end justifies the means. I'm all for charging terrorists and can even, if I try really really hard, understand the Justice Departments reluctance to address issues of national security in open court.

What I cannot understand is how a citizen can be held for this length of time without the benefit of due process. This is patently illegal and as much as I loathe hyperbole if we are willing to sacrifice the rule of law in exchange for some unquantifiable measure of security, the terrorists have already won. There also needs to be a narrowly defined definition of 'enemy combatant'. The way it stands now anyone can be termed an 'enemy combatant' and held for an unlimited period of time on the administrations say so -- this is not the way a free society functions.

The administrations contention, as stated by Attorney General Gonzales, that enemy combatants can be held for the duration of hostilities cannot and should not pass judicial muster. We are not, despite the belief of many, engaged in a 'war' on terror. This 'War on Terror' is like the 'War on Drugs' in the sense that is without definition and is, in essence, endless. By this logic the kid busted selling a few rocks should be held until society has rid itself of cocaine.

It's a no-brainer. If they believe Padilla has committed a crime they should charge him and make a case. If they are unwilling to do so, for whatever reason, they are required to release him. This is not optional.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
-- B. Franklin, Historical Review of Pennsylvania.
On preview: borg, one difference is that Padilla is an American citizen who was arrested inside the United States. IANAL and am certainly not qualified to discuss the applicability of the Constitution to foreign nationals, but as far as Padilla goes it seems obvious that he is entitled to the same protections as any American citizen.
posted by cedar at 3:36 AM on March 2, 2005

I can't wait until the next US administration dismantles Bush's "no stinking badges" security state. If, of course, it's possible by then.

But in this particular case, I don't see why the government doesn't just let him go (thus satisfying constitutional requirements) but then watch him (for which they can always find an excuse, or just find a way to do so secretly) until he does something for which he can be imprisoned. That's not what I want them to do, but I don't see why they don't think that way. How does it help the current regime to keep him locked up and Bush looking like a South American dictator?
posted by pracowity at 5:24 AM on March 2, 2005

borq: Yes, thanks a million!

cedar: Even foreign nationals can expect some kind of processing, treatment, accessibility, etc. when they are arrested. But not when they're enemy combatants.
posted by sninky-chan at 5:41 AM on March 2, 2005

"If everything you say about Jose Padilla is true, prove it," said Denyse Williams, executive director of the American Civil Liberties Union in South Carolina. . .

Unless, of course, nothing is being brought forth for the same reason that one does not reveal that one has cracked the cryptography of the enemy: because one would lose a stream of valuable and revealing information.
posted by gsh at 6:16 AM on March 2, 2005

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
-- Thomas Jefferson to Thomas Paine, 1789
posted by matteo at 6:26 AM on March 2, 2005

Turns out it was just a big misunderstanding.
Padilla was actually threatening the US with a Dirty Sanchez.

(lousy FBI translators)
posted by Bighappyfunhouse at 6:27 AM on March 2, 2005

gsh: that seems like a good enough reason as any to welcome a police state with open arms. When you break an enemy cipher, you'd keep it a secret so that the enemy would keep using it. Please explain how keeping prisoners locked up indefinitely relates at all to cryptography.

The whole notion that there is some class of people you can declare outside of the law is barbaric.
posted by chunking express at 6:28 AM on March 2, 2005

cedar: Even foreign nationals can expect some kind of processing, treatment, accessibility, etc. when they are arrested. But not when they're enemy combatants.
posted by sninky-chan at 5:41 AM PST on March 2 [!]

Sninky, the U.S. federal courts and the Department of Defense might disagree with you there. After the Rasul and Hamdi cases came down, the Guantanamo detainees were in fact given a modicum of process to challenge their designation as enemy combatants by combatant review tribunals. Now, at least one lower court has ruled that those tribunals are insufficient.
posted by insideout at 6:53 AM on March 2, 2005

I would advise all of you who are worried about this and other violations of civil liberties to join and contribute to the Amercian Civil Liberties Union. I am sure that many of you appreciate what they are doing. I say, put your money where your mouth is and become a card carrying member like me.
posted by Yellowbeard at 6:57 AM on March 2, 2005

Unless, of course, nothing is being brought forth for the same reason that one does not reveal that one has cracked the cryptography of the enemy: because one would lose a stream of valuable and revealing information.

This works out well until you realize that this could be said about anyone at all, whether or not they have any valuable and revealing information... because no one can challenge the unilateral government edict that you do. In a situation where the intelligence is bulletproof this is one thing, but in the US evidence is most likely to come from those same people who said, pre-2003, that Saddam had massive stockpiles of WMDs.
posted by clevershark at 7:58 AM on March 2, 2005

Gonzales: "We are working very hard in looking at ways to have ultimate disposition of everyone that this government detains."

Of course it's an incredibly unfair comparison, but I'll make it anyway: Doesn't "ultimate disposition" sound a little too much like "final solution"?
posted by brina at 8:48 AM on March 2, 2005

This is another example of Bush presuming a power and authority that he doesn't have and, since he's surrounded by bobbleheaded Yesmen, no one will tell him he can't. So he does and commits yet another breach of his powers and duties while unlawfully detaining Padilla.
posted by fenriq at 10:35 AM on March 2, 2005

brina writes " Gonzales: 'We are working very hard in looking at ways to have ultimate disposition of everyone that this government detains.'

"Of course it's an incredibly unfair comparison, but I'll make it anyway: Doesn't 'ultimate disposition' sound a little too much like 'final solution'?"

No! Not at all! It's not in German!!!!

As long as it happens in America, by Americans, it can't be Fascism!!!!

Because we're the good guys!

It's only a Holocaust if the Germans do it.

To the Jews.

And only if it's from 1933-1945.

So see, when we say "never again!" we mean it! Literally.

So STFU librul!
posted by orthogonality at 10:37 AM on March 2, 2005

DING DING DING!!! And that's it for this round of "3, 2, 1... GODWIN!" Thanks for playing. We'll see this weeks winners: Brina and Orthogonality, on next weeks show for the final elimination round centered around a discussion of the impending invasion of Iran!
posted by shmegegge at 12:34 PM on March 2, 2005

I'll admit, I've done it a few times myself in the past, but... how, exactly, are any of our lives improved when someone calls "Godwin?" Self-satisfaction doesn't count.
posted by sonofsamiam at 12:39 PM on March 2, 2005

In regards to the cryptography comparison: having read Cryptonomicon recently as well, I believe what you're saying is that trying these people, and bringing the evidence against them to light, would reveal what we know about OTHER terrorists who we'd rather keep unaware of our knowledge of them.

Then perhaps we shouldn't arrest him at all, and keep him under surveillance.

You see, shit like what we've done with the 500+ guantanamo detainees only makes more terrorists. Furthermore, the mere fact that he was detained/arrested clues his compatriots (if he's a terrorist) in to the fact that we're probably on to them. There's nothing we could present in court that they wouldn't have assumed by now that we already know, out of prudence and caution.

Oh, and it's a gross violation of personal and civil liberty that there is no degree of safety strong enough to justify.
posted by shmegegge at 12:42 PM on March 2, 2005


in this case, it was a gross violation that contributed negatively (in my opinion) to the conversation. I mean, comparing ultimate disposition to final solution? come on, all that does is paint the other side as the ultimate evil on no basis at all just to color our perception of them.

Also, it was fun.
posted by shmegegge at 12:44 PM on March 2, 2005

Hmm. Maybe the constitution needs an amendment about the rights of foreign citizens; I think the world has changed a bit, and there's certainly room for it.
posted by koeselitz at 2:25 PM on March 2, 2005

Maybe the constitution needs an amendment about the rights of foreign citizens

The way I read it, the due process clause of the Fourteenth Amendment already addresses this (my emphasis):
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If these protections only apply to citizens, it would say "citizens," especially right after defining who citizens are.

U.S. District Judge Joyce Hens Green recently ruled that detainees at Guantanamo Bay are entitled to constitutional rights, pending an appeal by the administration.
posted by kirkaracha at 2:58 PM on March 2, 2005

It was my understanding that the original gist of Godwin's Law went like this: the first person to call someone else a Nazi in an internet argument lost the argument. So, the person who says, "I'm sick and tired of all the Double Post Nazis goose stepping into every thread and crapping all over it," would be the de facto loser.

Drawing legitimate (or semi-legitimate) parallels to historical evens does not qualify for a Godwin. The Godwin call-out does, however, remove the need to address the accusations, and that's a shame. I mean, if someone really was acting like a Nazi, should we just allow it to continue because it's considered poor form to mention the word?
posted by FYKshun at 3:15 PM on March 2, 2005

kirkaracha: I think you summarized my feelings on the subject. The 14th and 5th Amendment do not grant a right to due process, they prohibit the government from taking certain actions without due process.

Now the caveat is the 5th Amendment has a loophole for wartime actions. So I suspect that will be the big question.
posted by KirkJobSluder at 3:37 PM on March 2, 2005


that is a very good point, and one of the unsettled contentions to Godwin's law. In fact, according to the wiki on the subject, it's considered in many circles bad form to call it out at all. They'd rather it be silently understood that the argument has ended.

In this particular case, I don't think it was a legitimate comparison to the Nazis, for the reasons I stated above.

Had I known that a Godwin call-out was considered such a problem, I wouldn't have done it. Many apologies. Especially since this is starting to seem like too much of a diversion from the thread topic for my taste.

I do, however, still find the comparison to be ill-used and would like that noted. I think it negatively contributes to the discussion.
posted by shmegegge at 5:18 PM on March 2, 2005

wait, I think I may have misunderstood FYKshun's point. If you were saying that Godwin's law was restricted to times when one side called the other side a nazi, then I don't think that's necessarily the case.

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

That quote doesn't specifically mention comparisons to any one side, just a comparison at all.

my 2 cents on the issue.
posted by shmegegge at 5:22 PM on March 2, 2005

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