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.
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 defendants treatment while detained. The defendants 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.)