Discourse.net

Luban on Padilla v. Yoo

David Luban has a great meta-post on Padilla v. Yoo.

Padilla Verdict

I’m hearing from a couple of sources that the jury found Padilla guilty on all three counts: conspiracy to murder, maim and kidnap.

Update: Yes, Cnn.com confirms the verdict.

From what I read of the trial, I did not think the evidence was sufficient to convict him, but these judgments are better left to commentators who were actually present in the courtroom.

On 'Outrageous' Government Conduct

I read the news that Judge Lewis A. Kaplan dismissed the criminal tax case against 13 KPMG defendants with a little bit of bemusement.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here’s a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees’ legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants’ rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values - the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I’m prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there’s some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government’s conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I’m always a bit nervous posting about cases based only on news reports. If there’s something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Fireworks at the Padilla Trial

Local federal court uber-blogger (and sometimes cheesecake purveyor) David Marcus points out that the lawyers in the Padilla trial have something to worry about over July 4th:

Southern District of Florida Blog: Dress up day…: In the Jose Padilla trial, jurors showed up today all dressed up. Row one in red. Row two in white. And row three in blue. I’m not kidding.

And this isn’t the first time the jury has dressed up. A week back, all of the jurors (save one) wore black.

So what do you make of this. On the one hand, the jury might just be having some fun. This is a long trial and it’s not a one hour Law and Order show. It’s boring.

Perhaps the jury is unified, which might be a poor sign for the defense. If everyone is thinking the same way at such an early stage, defense lawyers get nervous. Or the prosecution might be concerned because this is obviously a happy jury. Happy juries during a terrorism trial might not be good.

The trial is in recess until next Monday so the lawyers will have plenty of time to make themselves crazy over what all this means.

Meanwhile, the government has put on Dr. Rohan Gunaratna, its most effective expert witness on terrorism — and apparently the Judge has allowed him to avoid testifying about some of his sources and methods, which is slightly odd. He’s also been admonished giving an interview during the trial. Which is not Dr. Gunaratna’s first experience of official criticism: in 2003 the CIA criticized his accuracy.

FDL Will Cover Padilla Trial

Firedoglake, the good people who did such a great job of covering the Scooter Libby trial, have brought a special guest on board to cover the Padilla trial which started today here in Miami: Introducing … Lew Koch! (Koch has been called “an old-fashioned ass-kicking Chicago investigative reporter, trained by the same guys who trained Seymour Hersh.”)

Mr. Koch will have to deal with things like unwritten rules barring the press from asking questions — even when court is not in session! (Just to be clear - this rule barring questions near the courtroom might well be reasonable under the circumstances, in order to protect the jury from overhearing something. But it would, I think, need to be formally ordered by the judge in writing or orally in open court, in order to be valid.)

Another good source for links to information is of course the judicious Southern District of Florida blog. Personally, I’m not going to try to blog every twist and turn, just the most interesting bits: I have exams to grade.

Where's the Beef?

On the eve of the Padilla trial, the Washington Post has a good review of the government’s case: rich on “atmospherics,” but Few Specifics Evident As Padilla Trial Nears.

In short, nothing substantive has changed much since I wrote about the strange lightness of the indictment back in November 2005 (!).

[Index of my Padilla-related posts.]

Full Text of Denial of Padilla Motion to Dismiss for Outrageous Government Conduct

I’ve got a copy of the full text of Judge Cooke’s decision denying Padilla’s motion to dismiss for outrageous government conduct.

Judge Denies Padilla Motion to Dismiss Based on 'Outrageous Government Conduct'

As usual SDFLA blog has the story first, Judge Cooke denies Jose Padilla’s motion to dismiss for outrageous government conduct.

Judge Cooke did something interesting last night: she avoided the need for an evidentiary hearing on Padilla’s claims that he’d been tortured by the Navy by taking them as true for the purposes of deciding this motion. Even taking those factual claims as true, however, the Judge denied the motion. Of the reasons given, the third strikes me as the strongest and most interesting:

Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. …

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

As this decision comes after a ruling that Padilla is competent to stand trial, the argument that something about the (alleged) torture makes him unable to participate properly in his own defense is already off the table.

In summary, as I understand it, the Judge isn’t exactly saying whether the government’s conduct here was or was not outrageous, but rather that even assuming the truth of the allegations that it was, the only relief to which Padilla is entitled in his criminal defense is exclusion (or, amazingly, a hearing on exclusion!) of any evidence gathered while he was being held and tortured. (Claims for, say, monetary relief for illegal detention would be an entirely separate civil proceeding.)

That said, I think that to the extent Judge Cooke is relying on her reading of Toscanino for the proposition that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct, that is neither an obviously correct reading of that decision nor an obviously correct decision on first principles either. Indeed, Toscanino is pretty opaque on the question of relief, since the facts on the alleged illegal conduct had yet to be developed, and really only stands for the proposition that a defendant alleging such conduct is entitled to a hearing to present his claim to the court. At least in my quick reading of that case, what the relief should be is left pretty wide open, especially in light of this passage:

… the Supreme Court’s expansion of the concept of due process … now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, [FN4] which guarantees “the right of the people to be secure in their persons … against unreasonable … seizures,” the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

…we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud.

How one applies this language to Padilla is no easy question, since he was arrested in the US, not forcibly dragged here from abroad. It is possible to read the case the way the Judge did, but I think it’s also possible read it to allow a greater remedy. The question is exactly whether “suppression of evidence will … suffice,” or whether this is a case in which more is required to vindicate “the underlying principle that the government should be denied the right to exploit its own illegal conduct.”

The issue is now clearly presented for the inevitable appeal.

Feds Say They 'Lost' Key Padilla Evidence

Funny how convenient this is. The government says it ‘lost’ a key DVD of the final interrogation of Padilla. Newsweek has the scoop:

Terror Watch: The Missing Padilla Video: … what happened to a crucial video recording of Padilla being interrogated in a U.S. military brig that has mysteriously disappeared?

The missing DVD dates from March 2, 2004. It contains a video of the last interrogation session of Padilla, then a declared “enemy combatant” under an order from President Bush, while he was being held in military custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in the course of an unusual court hearing about Padilla’s mental condition, a government lawyer disclosed to a surprised courtroom that the Defense Intelligence Agency—which had custody of the evidence—was no longer able to locate the DVD. As a result, it was not included in a packet of classified DVDs that was recently turned over to defense lawyers under orders from Judge Cooke.

The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government’s highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. “This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi,” said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government’s treatment of Padilla. “It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused.”

“This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi,” is harsh, but probably deserved.

Padilla Found Competent to Stand Trial

Judge Cooke decided today that Padilla is mentally competent to stand trial, but warned that this decision is without prejudice to any future ruling on Padilla’s claims of Outrageous Government Conduct:

A federal judge decided Wednesday that alleged al-Qaida operative Jose Padilla is mentally fit to stand trial on terrorism support charges, despite his attorneys’ insistence that he is unable to help them prepare a defense.

Padilla was in court when U.S. District Judge Marcia Cooke announced her decision, but he showed no reaction.

“This defendant clearly has the capacity to assist his attorneys,” Cooke said just hours after she finished a four days of competency hearings.

Padilla News

The government subjected Padilla to years of sensory deprivation, blocked most human contact, blackened his windows so he’d have no natural light and no idea of the passage of time (no clock, no radio), and made him sleep on a steel bed with no mattress. But they didn’t mistreat him, and the fact he smiled when he saw a prison psychiatrist through a small metal opening in his door proves he’s able to interact with people enough to participate in his defense. The contrary opinion by his psychiatrist is due to the fact that Padilla had to wear handcuffs during that interview due to prison rules, so there would be no way that anyone but the staff shrink could actually evaluate what he’s really like.

That seems to be the essence of yesterday’s testimony.

Washington Post, Padilla Was Deprived, Not Abused, Court Told:

During his 3 1/2 -year detention as an “enemy combatant,” accused al-Qaeda operative Jose Padilla was at various times deprived of a clock, windows and a Koran, and forced to sleep on a metal bed frame without a mattress, according to testimony Tuesday from an official at the Navy brig where he was held in Charleston, S.C.

The account of Sanford E. Seymour, the brig’s technical director, was narrow in scope and offered only a glimpse of Padilla’s incarceration, which Padilla and his attorneys have said included torture that renders him psychologically unfit to stand trial.

Limited by a court ruling to what he had discussed with a psychologist evaluating Padilla’s competence for trial, Seymour’s testimony was sketchy but ran contrary to some of Padilla’s most serious allegations.

“I told him I knew of no physical abuse,” Seymour testified.

New York Times, Jailers Testify About Padilla’s Confinement:

As Jose Padilla dropped his head and grew still, a senior official from the naval brig in Charleston, S.C., testified on Tuesday in federal court here that he had twice observed Mr. Padilla weeping in the electronically monitored cell where the military detained him for three years and eight months.

The brig’s technical director, Sanford E. Seymour, also said that Mr. Padilla, an American citizen who was designated an enemy combatant in 2002, sometimes slept on a steel bunk without a mattress, that the windows in his 80-square-foot cell were blackened and that brig employees covered up their nametags around him.

Mr. Seymour said that Mr. Padilla, a Muslim, occasionally visited with an imam and that his Koran was taken from him periodically; that he sometimes went outside to shoot baskets or sunbathe; and that when Mr. Padilla believed he had been administered LSD, it was really a flu shot.

These scattershot revelations, elicited by Mr. Padilla’s lawyers in a hearing of sharply limited scope, did not add up to a comprehensive portrait of Mr. Padilla’s time in the brig. But they were nonetheless significant, marking the first time Mr. Padilla’s military jailers were forced to speak publicly about the conditions of his secretive confinement without charges. …

… Bureau of Prisons psychologist, Dr. Buigas, disagreed with the diagnosis of post-traumatic stress disorder. He said Dr. Zapf’s testing was invalidated by the fact that Mr. Padilla was handcuffed during the tests, a condition imposed on Dr. Zapf by prison officials.

The Times article also notes a debate over the government’s attempt to introduce what it says was evidence Padilla is shamming:

Prosecutors tried to introduce into evidence what they said was an internal document from Al Qaeda that coached operatives to be obstructionist if captured, to avoid revealing information and to make a claim of torture even if no mistreatment had occurred. This document, which they referred to as the “Manchester manual” because it was found several years ago in Manchester, England, was what guided Mr. Padilla, they said.

“Don’t I have to have some evidence that Mr. Padilla was aware of this document and studied it?” Judge Cooke asked prosecutors.

In declining to admit the manual into evidence, she added that the manual would have converted the competency hearing into a debate over whether the defendant had been tortured in the brig.

For more on the “Manchester manual” see Dick Destiny’s blog and a text of the Manchester manual at Cryptome.

This Should Be Interesting

Judge Orders Padilla Jail Personnel to Testify:

Officials at the Navy brig where terrorism suspect Jose Padilla was held for 3 1/2 years as an enemy combatant were ordered Friday to testify at a hearing to determine his psychological competency, a ruling that allows the defense to press its claims that sensory deprivation and torture in confinement have rendered the alleged al-Qaeda operative unfit to stand trial.

The ruling marks one of the few times since the Sept. 11, 2001, terrorist attacks that officials responsible for the jail conditions and interrogations of terrorism suspects have been called to testify, and it is the first time in the Padilla case.

I gather the hearing is “next week” but don’t know exactly when. Pity it is going to be such a busy week for me, for I’d like to go. [UPDATE: Why do I have to read the Guardian, based in London, to learn that the hearing will be on the 22nd.]

Meanwhile, Padilla’s co-defendants are asking to have their trial severed from his on the grounds that the media attention given to Padilla’s case will poison theirs. There’s some irony there, given that at least on the face of the indictment, the tarnishment seems much more likely to work the other way around: the facts alleged against the other defendants are more damning and more detailed than the rather thin gruel served up about Padilla himself.

Padilla Trial Delayed Until April

Jose Padilla's trial has been postponed from January 22 until April, to allow a full mental competency evaluation to be performed.

Wouldn't the KGB Be Proud of John Ashcroft?

In what way, other than (thank goodness) the size of the prison population, is it wrong to call the incarceration and intentional breaking of Jose Padilla an American Gulag?

So far, I can think of only one other: that eventually -- far too late? -- the courts probably would have forced his release into the general prison population, and the fear of this outcome forced the government's hand. But by then the damage seems to have been done.

Perhaps that's enough for the long run. But perhaps not.

And, by the way, that case isn't looking so great, is it?

Court Orders Mental Competency Exam for Padilla

Mental Exam Ordered for Terror Suspect.

A psychiatrist and a psychologist hired by Padilla's attorneys concluded he is suffering from post-traumatic stress disorder and other mental problems stemming largely from his 3 1/2 years in solitary confinement at a Navy brig in Charleston, S.C.

Prosecutors did not contest the request for the evaluation, although they do contest claims of mistreatment (while withholding evidence relevant to the conditions of confinement).

Trial date is still Jan. 22 -- so far.

"X-Judge" H. Lee Sarokin Starts His Blog With a Bang

H. Lee Sarokin was a judge on the Third Circuit until he retired and became an arbitrator. Now he's a blogger too, and his first post starts things off with a bang:

This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant".

...

The alleged dirty bomb plot is nowhere mentioned in the indictment against him. Mr. Padilla may be guilty of something, but the administration is guilty of far worse.
The administration has justifed (and to large extent the public has accepted) wiretapping, these detentions, and possibly even torture, on the basis that these methods fight terrorism and confine terrorists. But what if they are not terrorists? Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeus corpus ("the best and only sufficient defense of personal freedom" Justice Chase, 1868), thus denying the means and opportunity for those detained to establish their innocence of any wrongdoing.

American soldiers are dying to win freedom for the people of Iraq, while we are losing freedom for the people of America.

I just hope current sitting judges are equally outraged.

[Update: How long before Mr. Sarokin gets a cease-and-desist letter from Marvel Comics or 20th Century Fox?]

Padilla News: Discovery Battles

Talkleft reports on Feds Move to Block Jose Padilla Subpoenas. At issue are the Navy's records of what they did to Padilla for the three years they had unfettered power over him.

Whatever the outcome of this motion, it is essential that this information be made public in some way -- Congressional hearings? -- so that the public can be reminded why the Bill of Rights is so crucial to our freedom. Because I suspect that the Navy did not even come close to complying with it.

NPR Likes UM Law

Today it was my colleague Steve Vladeck's turn to be on NPR, in this segment on the Padilla case.

Padilla Reply Brief and Exibits on Motion Alleging Outrageous Government Conduct

John Young kindly collects the links (and has some good pictures):

1 Main Document 10 pages Mr. Padilla's Reply to the Government's Response to the Motion to Dismiss for Outrageous Government Conduct

2 Exhibit A 1 page Affidavit of Jose Padilla

3 Exhibit B 5 pages Affidavit of Angela Hegarty, MD

4 Exhibit C 4 pages Stuart Grassian, MD, Overview: Neuropsychiatric Effects of Solitary Confinement

5 Exhibit D 7 pages Declaration of Andrew G. Patel, Attorney

Posted by Michael at 02:02 PM | Link | Comments (2)

Evidence Mounts that US Used Psychological (and Physical?) Torture Against Padilla

The evidence begins to mount that the US used at least psychological torture against Jose Padilla while holding him in the Navy brig for almost three years.

Padilla’s allegations that he was kept in total sensory deprivation begin to seem more credible. Padilla’s lawyers allege that he was kept alone in a locked room and fed through a slot to minimize human contact.

Padilla was by all accounts a docile and model inmate. What possible justification other than the desire to break Padilla by isolating him could justify the treatment depicted in this picture, published in the New York Times today:

The NYT explains the photo as follows: Padilla got to go to the dentist once — for a root canal. To prevent this from breaking his sensory deprivation, the Navy worked hard to minimize human contact:

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

I hope it is not going to be debated that if it is proved that the government did hold Padilla in sensory deprivation conditions for months, much less years, this is not only cruel and unusual, but actual government misconduct.

The effects certainly appear to have been severe,

Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit filed Friday that he “lacks the capacity to assist in his own defense.”

“It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation,” Dr. Hegarty said in an affidavit for the defense.

…

Dr. Hegarty said Mr. Padilla refuses to review the video recordings of his interrogations, which have been released to his lawyers but remain classified.

He is especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day, Mr. Patel said in his affidavit.

“During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body,” Mr. Patel said. “The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel.”

Recall that Padilla is a US citizen, arrested in the USA, and at the relevant times had been charged with no crime.

US Government Brief Denies Padilla Was Tortured

Thanks again to David Markus here's a copy of the Government's Opposition To Defendant Padilla's Motion To Dismiss For "Outrageous Government Conduct".

Short version: We deny everything. And even if it's all true the remedy is to sue us, not dismiss this case.

Pithy quote:

The government in the strongest terms denies Padilla's allegations of torture -- allegations made without support and without citing a shred of record evidence. For present purposes, however, what matters is that the law plainly does not permit the remedy he seeks: dismissal of the indictment. No further inquiry is required.

Disengenous argument warning:

Padilla's allegations of torture have no merit whatsoever, but the more basic and insurmountable problem with his motion is a purely legal one. Padilla has not cited a single precedent "absolutely bar[ring]" a federal criminal prosecution because of alleged due process violations committed during a prior military detention. By contrast, courts have firmly and consistently held that an indictment may not be dismissed due to supposed "outrageous government conduct" arising out of the defendant’s treatment while detained. The defendant’s remedy, if any, lies in the civil process or prosecution of the offenders; he is not entitled to a free pass from his own criminal conduct. Moreover, even in the wholly distinct line of cases involving allegedly outrageous prosecutorial misconduct, a defendant still must show that the misconduct substantially prejudiced his defense, and produce up front evidence to support his claims. Padilla has not made such a showing, and his motion should be denied as a matter of law.

Well of course there are no cases involving misconduct during prior military incarceration -- that was part of the misconduct! -- but no judge is going to have any trouble charging the prosecution with the military's conduct. An ever so much more so given that Padilla was held in civilian detention before being turned over to the Navy.

That said, the government has meatier arguments based on 11th Circuit precedent...but I'm not sure on a quick reading that they utterly tie the judge's hands.

Prediction: At least some kind of hearing.

The big issue: Will there be discovery? How much?

(Links to text of Padilla's motion, to which this is a response, here.)

US Still Hasn't Turned Over Padilla's Medical Records

TPMmuckraker has some interesting Padilla-related news and speculation regarding his allegation that the government force-fed him hallucinogenic drugs:

Early this year, [Orlando] do Campo, [a public defender representing Jose Padilla] said, Padilla's legal team asked the Defense Department to turn over Padilla's medical records from his detention at the brig of the Naval Weapons Station in Charleston, S.C. The government resisted, but the judge ordered them to comply. Several months later, do Campo still has not seen a single page of those records.

If Padilla was given drugs of any kind, one could expect them to be recorded in those files. Is that why the Defense Department is having a hard time turning those documents over?

Full Text of Padilla Motion Alleging Outrageous Government Conduct

Thanks to David Markus, I have an e-copy of Padilla's motion alleging outrageous government conduct. Have it in the original .rft or in my conversion to .pdf.

(Earlier post: Padilla Torture Claims Detailed.)

Padilla Torture Claims Detailed

David Markus has put up his summary of the key allegations in Padilla’s claim of torture at Southern District of Florida Blog: Update on Padilla motion to dismiss for outrageous government conduct.

I urge you to read it. In addition to isolation and sensory deprivation, it alleges a great deal of brutality. If only parts of it are true, I think this makes out a claim of cruel and unusual confinement; if more of it is true, it’s torture. Here’s a sample,

In an effort to gain Mr. Padilla’s “dependency and trust,” he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers – Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same. He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell – nine feet by seven feet – had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity. Mr. Padilla’s captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk.

…

Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds.

It’s an allegation; the source is something of a thug. I deeply want this not to be true. But I regret that I can’t summon up the same degree of skepticism I do for wild allegations by others.

The motion asks for the charges to be dismissed in light of what it calls nearly three years and eight months of torture. Unfortunately, I don’t know enough criminal law to know if this relief even lies within the court’s power. Further, and supposing it does not, I’m unclear on this court’s authority (as opposed to one hearing a civil claim for damages) to look into the history of past abuse except as they may be relevant to evidentiary claims or claims of ill-motivated prosecution. Any crim law mavens in the audience?

New Details Emerge on Padilla Arrest

The New Times, our local alternative weekly seems maybe to be picking itself off the floor after a very very bad year. The current issue has a very interesting article on the Padilla case, including information new to me about Padilla's arrest:

U.S. marshals obtained a warrant to detain Padilla as a witness for a grand-jury investigation.

Until recently, few details were known about Padilla's 2002 encounter with federal agents at Chicago's O'Hare International Airport. This past September 5, however, U.S. Magistrate Judge Stephen T. Brown offered a partial view of sealed reports and public testimony from U.S. Customs and the FBI. The details of those documents are being reported here for the first time.

After Padilla stepped off the plane from Zurich, he was escorted by a U.S. Customs agent to a 20-by-40-foot interrogation room. There he met with Customs Agent Andy Ferreri. The federal official questioned Padilla about why he declared having $8000 in cash when, in fact, he carried a little more than $10,000. Padilla, who had not been arrested and was not restrained, replied that he didn't think it was a "big deal."

FBI officials from New York soon arrived. There were eight agents altogether. After Ferreri left, four of them spoke with Padilla. The other four stood guard outside. Padilla was remarkably forthcoming with the FBI, according to Judge Brown's summary of the sealed reports: "[Padilla] stated that he had been living in Egypt and then voluntarily discussed his early life and relationships and his incarceration, during which time he began his Islamic studies. He then discussed traveling to Pakistan and Egypt to continue his studies. Agent [Russell] Fincher asked the defendant how he was able to afford to do that, and the defendant replied that he was funded by a mosque in Florida and also mentioned several other individuals who helped him make arrangements to go to Egypt. Defendant also discussed his tutor in Islam studies, his pilgrimage to Mecca, and persons who assisted him."

Padilla told FBI officials he wanted to call his mother in Florida, because "he had been 'clean' for many years and did not want his mother to perceive that he was in any kind of trouble." FBI agents pressed Padilla for details: Why do you need to call her? Padilla then dropped the request.

Agent Fincher then became — to use the FBI man's word from his report — "confrontational." He told Padilla what he believed had occurred in the Middle East: "that [Padilla] had been in Afghanistan, where he had engaged in training and met high-ranking al-Qaeda officials; that those officials sent [Padilla] back to Pakistan, where he was with other associates; that he had left Pakistan en route for somewhere for an act of terrorism; that [Padilla] had been delayed and traveled with another individual who was a foreign national with a false passport and was detained with that person in Karachi; and that [Padilla] then traveled from Zurich to Egypt and back and then to Chicago, where he intended to commit or conduct surveillance for a terrorist act."

The money, Fincher told Padilla, was intended to fund terrorism in the United States.

Padilla stood up. "The interview is over," he said. "It's time for me to go."

Fincher, who described Padilla's demeanor as "a bit confident" and "haughty," said he hoped Padilla would testify voluntarily before a grand jury in New York. The Puerto Rican-American then "asked questions about representation."

At that point, Fincher read Miranda rights and arrested Padilla on the warrant. Officials brought Padilla to New York.

One month later, on June 9, 2002, President George W. Bush declared Padilla an enemy combatant. "Padilla represents a continuing, present, and grave danger to the national security of the United States," Bush wrote.

The president used Mobbs's report as the basis for this conclusion. But, as is indicated in court filings, Mobbs left out a striking detail in his report to the president: The government's two al-Qaeda sources told officials that Padilla was not interested in martyrdom. He had said he refused to die for his faith.

Padilla spent the next three and a half years incarcerated, without access to an attorney, at a military brig in Charleston, South Carolina.

Overall, the thrust of the article is that Padilla is more a "punk" than a terrorist, even though he seems to have travelled around with someone who sounds more like the real deal. The article concludes with some good quotes from my colleague Steve Vladeck. Well worth a read.

Padilla Alleges Three Years of Torture

With the headline Jose Padilla on the offensive, the Southern District of Florida Blog gives us just a tease:

The Federal Defender's Office has filed a number of motions on Jose Padilla's behalf, including a motion to dismiss for pre-indictment delay, a motion to dismiss for a violation of Padilla's speedy trial rights, and a motion to dismiss for outrageous government conduct. The motions have some extreme allegations, including saying the Padilla was tortured for three years while held in complete isolation. More to come after I've read them all.

Ok David, you've got my attention.

Judge Cooke Dismisses 1/3 Padilla Indictment

See the Miami Herald Judge throws out terror charge in Padilla case, and The Order (pdf).

As usual, SDFL Blog has the juicy details:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. ...

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal -- and quickly. Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties ... An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. ...

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I'm sure, be appealed.

And there's lots more good stuff where that came from.

This is a big win for Padilla and his legal team, and a very gutsy decision by Judge Cooke. But from what I know of the case -- it looks like she did the right thing. And the government's case still looks weak, although the very weakest elements are gradually being pared off...

Padilla: Oh What a Difference a Judge Makes

Back when the feds finally got around to actually indicting Jose Padilla, I suggested that the indictment was curiously light on actual allegations of illegal actions by Padilla himself as opposed to his supposed co-conspirators.

Well, it seems that the judge agrees:

Judge orders more investigative details turned over to Padilla defense: South Florida Sun-Sentinel A federal judge ordered prosecutors Tuesday to provide more specific accusations against alleged al-Qaida operative Jose Padilla and two other men charged with supporting terrorism overseas.

U.S. District Judge Marcia Cooke called the government's 2005 indictment of Padilla, a former Broward County resident, Adham Amin Hassoun, and Kifah Wael Jayyousi "light on facts" and said defense lawyers would need more details to sift through a large amount of evidence related to the case.

I should also point out that this straight-shooting approach to the rules of criminal procedure appears to validate SD FLA Blog's David Markus's take on Judge Cooke.

Padilla Claims US Relies on Evidence Extracted by Torture

Jose Padilla's lawyers have filed motions to suppress evidence from two sources, one whom he alleges was tortured after US rendition to Morocco. Explosive stuff.

Quick summary at Jurist.

Talkleft has the most details:

One of the witnesses, Binyam Ahmed Muhammad, was held at Guantanamo. The other, Abu Zubayda, is being held in a secret overseas location.

Patel said Muhammad has told his own lawyer that he was whipped, hung from the ceiling of his cell with leather straps and later taken to Morocco where he was tortured with a razor. Patel said Zubayda was treated after his arrest for gunshot wounds, raising questions about "the effect the medications may have had on Abu Zubayda's ability to provide accurate information."

I have just reviewed the defense motion, here is the exact quote:

Binyam Muhammad has informed his attorney that after his arrest in Karachi, Pakistan, he was held in prison where he was hung from the ceiling of his cell with leather straps . Binyam Muhammad was whipped by his Pakistani jailers but they asked him no questions as they had no common language . Binyam Muhammad reports to his counsel that he was questioned by four agents who he believes were FBI agents . He was whipped by the jailers before and after being questioned by the FBI agent who asked him questions about Mr. Padilla. Binyam Muhammad was later flown to Morocco where he was further questioned about Mr. Padilla and tortured by means of a razor being used to make incisions on his chest and his genitals.

The defense alleges these two witnesses were the Government's only sources for the arrest warrant.

It is respectfully submitted that the use of information obtained by torture, whether the torture is disclosed or undisclosed, is an act so unlawful and so contrary to the core values of this Nation as to both shock the conscience and render any search based on such information unreasonable. It is respectfully requested that this Court should hold a hearing so that the circumstances of the interrogation of both Abu Zubayda and Binyam Muhamma can be fully established. At the conclusion of such a hearing it is respectfully submitted that the Court will enter an Order suppressing all evidence seized from Mr . Padilla at the time of his arrest in Chicago.

The items Padilla is seeking to suppress were seized from him at Chicago's O'Hare airport on May 8, 2002 when he was arrested on a material witness warrant as he disembarked a plane from Switzerland.

No Bail for Padilla

Judge Martha Cooke denied bail for Jose Padilla today. She cited several facts which together, I think, make the decision unassailable:

'Dirty bomb' suspect Padilla to remain in jail without bail: Government lawyers maintained that Padilla, who has a lengthy criminal record -- including murder as a juvenile in 1985 -- and a wife and children in Egypt, is both a danger to the community and a flight risk. He also used several aliases, prosecutors said.

Cooke said she was mindful of the unusual circumstances of Padilla's detention, but would not allow his release. She noted that Padilla had failed to show up for court appearances in connection with criminal charges brought in the late 1980s and early '90s when Padilla was involved with a Chicago gang.

According to this sympathetic profile by SusanDeborah Sontag, Padilla's (second) wife lives in Egypt.

Padilla Lawyers Work the System

Southern District of Florida Blog summarizes the latest Padilla news:

Lawyers for Jose Padilla have appealed Magistrate Judge Garber's pre trial detention order. In their appeal, his lawyers contend that Mr. Padilla's application may be a fraud. The Government argued at the detention hearing that Mr. Padilla completed the form in 2000. Defense lawyers also assert that the government did not present evidence that Mr. Padilla could speak Arabic and therefore understand the contents of the form, or that he ever adopted the Arabic name Abu Adallah al Mujahir. Justice Department lawyer Stephanie Pell explained at the hearing that the application was authenticated by a cooperating government witness. One of the most interesting assertions in the appeal is that there were apparently more than 50,000 phone calls in the alleged 8 year terrorism conspiracy, and Padilla participated in only seven conversations.

Even ignoring the fraud allegations, we haven't seen much suggesting that the government has a particularly strong case, have we?

Vladeck on Padilla

My youngest colleague, UM Law Prof Steve Vladeck, has another fine JURIST column, this time on the AUMF and the Ever-Increasing Importance of Padilla.

Eyewitness to the Padilla Hearing

SD Fla blog has an eyewitness account of today's Padilla hearing. Bottom line: plea of "absolutely not guilty". And, oh yes, no bail.

I would have gone, except I had a prior engagement to attend this arbitration event. It was very interesting, although less historic.

Padilla's Family, Visiting Rules & Photos

The Miami Herald has a writeup of yesterday's Padilla hearing; the only part of it new to me was the information that Padilla has family in Broward County, which is the county just north of Miami-Dade, and only a short drive from here. In the ordinary case that would strengthen the argument for bail. But maybe not for someone who the government wants to portray as the most dangerous man in America?

The print edition, but not alas the online version, has a picture of Padilla's mother, who attended the hearing but sensibly didn't speak to reporters. Looking for an online version of the photo led me to an interesting MS-NBC article from 2002 that describes Padilla's uber-dysfunctional family background, although it's not exactly neutral in tone (it starts out trying to explain "Padilla’s malevolent streak").

Meanwhile, if Padilla does not get bail, he'll presumably be kept in Miami's "special housing unit". The visiting rules for this facility are, I think, here and here.

Wire service images included below (since I'm just including not copying these pictures, some may be only temporary).

Padilla's mother, Estrela Ortega, outside the courthouse (AP Photo/Wilfredo Lee)

Excellent likelness of Adrew Patel, Padilla's lawyer (REUTERS/Carlos Barria)

A sketch of Jose Padilla (C) appearing at a courthouse in Miami, January 6, 2006. (Jeanne Boggs/Reuters)

Padilla yesterday, being escorted by federal marshalls. (AP Photo/J. Pat Carter) Contrast this picture to the standard mug shot used in all news stories for the past three years.

Security at the courthouse was off the scale. (AP Photo/Lynne Sladky) Is someone really expecting al-Qaida to stage a prison break for a fellow traveller who didn't achieve anything except get arrested?

Padilla Hearing to Go To Third Round

David Marcus has the account of today's Padilla hearing. The bottom line is that not much happened, and everyone is coming back on TuesdayThursday morning for best of three, in which Padilla will enter a plea and the Magistrate Judge will presumably rule on bail. (The US asked he be held without bail, no surprise there.)

There was one odd thing, though. As the Magistrate Judge prepared to appoint the Public Defender's office as lead counsel, with Padilla's current attorney (who's not a member of the Florida bar) as co-counsel, the US Attorney's office objected:

AUSA Stephanie Pell then told the Judge that there was a potential conflict with the Miami office accepting the appointment. [Chief Assistant Federal Defender Michael] Caruso said that his office has reviewed everything and that he could say "without equivocation" that there was no conflict. Garber took the matter up at sidebar and after conferring, he kept the Miami Defenders as lead counsel.

They're playing hardball alright, but what on earth could they have been talking about?

Will Padilla Get Bail Set Tomorrow?

David Oscar Markus -- who I look forward to meeting some day -- attended Padilla's appearance today before Magistrate Judge Barry Garber.

Mr. Markus also has a separate post about Padilla's co-defendant, Kifah Wael Jayyousi, having bail set by Judge Marcia Cooke. It's $1.3 million, and there are other conditions -- stay local, wear electronic monitoring -- but release at all is a big win for him after years of very tight prison conditions.

However, Mr. Marcus didn't address the to me more interesting (but speculative) question of whether Padilla -- who after all is charged with pretty vague offenses that sound less serious than those of Jayyousi, his co-defendant -- also might get bail tomorrow. Maybe even lower bail. Could he be on the street soon?

Admittedly, AFAIK there's not so much in Padilla's history to suggest he has the sort of ties to the community or general demenor that would make him a model citizen. Might even call him a bit of a risk. But perhaps, on the facts in evidence, no worse than many other hoodlums with a bit of a rap sheet?

[Disclaimer: I don't do criminal law. Bail is a black box to me. Just wait till Mr. Markus sets me straight again....]

Padilla is Here

Padilla Brought to Face Civilian Charges: Jose Padilla is in Miami.

For a place so far, physically and psychologically, from the centers of financial and political power in this nation, we really are at the epicenter of all kinds of interesting things here in Miami.

Padilla Indicted: A Bittersweet Moment for the Rule of Law (Updated)

As the legal world knows by now, the United States this morning unveiled an indictment against Jose Padilla, the man formerly known as the "dirty bomber" -- to be tried here in Miami some time next year. (See Marty Lederman for details and atmosphere.) The Washington Post reports that "Padilla will be transferred from a U.S. Navy brig in South Carolina to Justice Department custody at a federal detention facility in Miami, according to an order signed by Bush on Sunday," which appears to be here, and which was followed by the government's Unopposed Emergency Application and Notice of Release and Transfer to Custody of Petitioner Jose Padilla, filed today.

It's a bittersweet moment for the rule of law. On the one hand, getting Padilla out of the ranks of the disappeared and into the ordinary criminal justice system is a good thing, and it's mildly cheering that even this administration fears even this Supreme Court enough to want to prevent it from ruling on the asserted power to grab any citizen, anywhere, and hold him or her without regard to the Bill of Rights for as long as the President is minded to order.

On the other hand, this decision to charge comes rather late, at the eleventh hour, and risks leaving in place a circuit court decision with draconian implications for Presidential power. The precedent set by this case -- including that of justice delayed to the point of denial -- cannot, should not, must not be allowed to stand. So long as our government claims the power to lock any one of us up in solitary, indefinitely, without trial, on the unsupported say-so of any official no matter how highly placed, we can give ourselves no airs before the other authoritarian regimes of the Americas.

Although originally rumored more than a year ago (!) the latest moves in the Padilla case are striking developments in several ways.

First, the timing: the indictment comes only days before the US Justice Dept. is due to file its answer to Padilla's petition for cert, that is just before the US would have to argue that the Supreme Court should not take review of an unusually expansive government-can-do-anything opinion by Judge Luttig in the 4th Circuit. The decision to formally charge Padilla, after all these years of holding him incommunicado in durance vile, aka the Navy Brig, most likely represents a recognition by Justice that cert -- and defeat -- loomed. It is now open to Justice to argue that the case is moot, avoiding a need to argue the merits.

In fact, however, this case is certainly not moot today, since the government has yet to say anything, much less anything binding, about what would happen to Padilla were he found not guilty. (Certainly, nothing in the presidential order releasing Padilla "to the control of the Attorney General" speaks to whether the alleged authority to hold him could be reinstated.) And the case may not be moot on Monday either, even if the government were to make the most iron-clad undertaking to the Court that Padilla himself would not be re-incarcerated under an "enemy combatant" theory.

It won't be moot Monday, because it is "subject to repetition, yet evading review" (like abortion cases, which can be heard long after the particular facts have matured). Depending how you count) this is the third or fourth time that the Bush Justice Department has sought to manipulate the Supreme Court's jurisdiction over one or another detention-related issue, and that makes it doubly clear that the Court could, if it chose, hear the case even if it were otherwise moot.

If the court will not hear the appeal, there is an intermediate ground between hearing and simple rejection of the cert petition: the Court might grant the petition, recognize its mootness, and vacate the lower court decision. Certainly, both Padilla and the nation have an interest in seeing the 4th circuit decision at least vacated. In principle, the Supreme Court can, under the so-called Munsingwear doctrine, in which the the Supreme Court recognized the "established practice" of the federal appellate system "in dealing with a civil case from a federal court ... which has become moot while on its way" to the appellate court "is to reverse or vacate the judgment below and remand with a direction to dismiss.United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The doctrine was restated in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), to emphasize that vacatur of a prior judgment is appropriate only when it is not the appellant's fault that the case has become moot: "A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." That describes Padilla's position, but practice teaches us that the Supreme Court frequently does not grant cert in order to vacate lower court judgments when the facts have become moot, as the Munsingwear/US Mancorp doctrine applies with full force to appeals as of right, as opposed to discretionary grants of cert.

Padilla's interest in having the lower court declared moot stems from the danger that some of it might be considered preclusive were he to later claim he was held illegally. The nation's interest in review and/or vacatur stems from the horrible precedent that the case presents, truly a "principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need," as my colleague Steve Vladeck noted (quoting Justice Jackson in dissent in Korematsu).

Turn now to the new indictment. If the Supreme Court grants cert, there's a significant chance that the criminal proceeding might be stayed, but it's far from certain as the new indictment is radically different from all that has gone before. It's so different as to be quite weird on the facts, and radically weird on the law.

Let's start with the factual allegations. Jack Balkin summed it up,

Originally the Justice Department claimed that Padilla had planned to detonate a "dirty bomb" (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today's indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become "a violent jihadist" and that he had conspired to send "money, physical assets and new recruits" overseas to engage in acts of terrorism."

Which brings us to jurisdiction. Padilla isn't charged with doing anything illegal in the US, but rather planning to do things abroad that would be illegal here. If this indictment were a literary work instead of a serious indictment, we'd say it was doing more telling than showing. Indeed, the indictment doesn't actually mention any specific act of violence nor any specific place it occurred or was intended to occur. Factually, it's all rather vague (which is allowed at this stage; not all indictments have to be as detailed as Fitzgerald's description of Libby's misleading testimony). The jurisdictional basis for the indictment appears to be 18 USC 956, Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, and 18 USC 2339A, Providing material support to terrorists -- in this case doing things, such as providing money, that would lead to a violation of sec. 956. While they have to spell out the crimes charged, indictments don't have to fully describe the facts on which the government bases its allegations -- that comes later. That said, the indictment does a good job of suggesting that the defendants knew each other and had a common purpose, but it is better at suggesting via lots of heavy breathing that they are Real Bad Guys than in actually demonstrating an evil act of which Padilla was actually a part other than going abroad to meet other Really Bad Guys: and indeed, it may be his crime, if indeed he committed one, was of intention rather than action. [Update: you can read more about the indictment in this post by Bobby Chesney at Opinio Juris.]

Finally, there is the small matter of venue. It is tempting to say that anything this weird finds its natural home in South Florida, and indeed the mind boggles a little at the legal circus we have in store some time in 2006 (currently scheduled for Sept. 2006, just in time for all of us to teach seminars about it), or fates preserve us, even later. But in fact, there is a method to the government's madness here: Padilla has been added, via superseding indictment to an ongoing case based here in which other alleged members of the conspiracy were already charged. It may not be irrelevant that in U.S. District Judge Marcia G. Cooke, the government should not expect a hostile bench.

UPDATE: SD FLA Blog's David Markus -- who has first-hand experience and so is in a much better position to know -- says that I'm wrong about Judge Cooke:

Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike.

This is the sort of thing I'd be really happy to be dead wrong about. (I confess that the bit about her being Jeb Bush's "former chief inspector general" suggested a certain frame of mind.)