Padilla NOT an enemy combatant?

[Hurin_Rules]

Well, after three years of solitary confinement without charges, it seems Padilla may not be an 'enemy combatant' after all.

No 'dirty bomb' charges filed against suspect held for three years

Updated: 12:51 p.m. ET Nov. 22, 2005
WASHINGTON - In a surprise legal development, the Bush administration announced Tuesday that Jose Padilla, a U.S. citizen held without charges for more than three years on suspicion of plotting a “dirty bomb” attack in this country, has instead been charged with conspiring to “murder, maim and kidnap” people overseas.

A federal grand jury in Miami added Padilla to a pre-existing indictment against four others, Attorney General Alberto Gonzales told reporters.

While the charges allege Padilla was part of a terrorism conspiracy, they do not include the government’s earlier allegations that he planned to target the United States by using a radioactive dirty bomb and blowing up apartment buildings with natural gas.

Gonzales said he expected Padilla to be alongside the other four when the case goes to trial next September.

“The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad,” Gonzales said.

Saying he could only talk about the specific charges, Gonzales declined to answer NBC News questions about why none of the allegations involving attacks in America were included in the indictment.

Padilla, a Brooklyn-born Muslim convert, had been held as an “enemy combatant” in Defense Department custody. The Bush administration had resisted calls to charge and try him in civilian courts.

Charges, names of others
Padilla faces life in prison if convicted on the three charges — one count each of conspiracy to murder, maim and kidnap people overseas, providing material support to terrorists and conspiracy.

According to the indictment, Padilla traveled overseas to receive violent jihad training and to fight violent jihad from October 1993 to November 2001. On July 24, 2000, Padilla allegedly filled out a “Mujahideen Data Form” in preparation for violent jihad training in Afghanistan and reportedly was seen in that country in October 2000.

The charges against him and four others allege they were part of a North American support cell that sent money, assets and recruits overseas “for the purpose of fighting violent jihad.” The indictment mentions Afghanistan, Bosnia, Chechnya, Egypt and Bosnia, but makes no allegations of specific attacks anywhere.

The others indicted are: Adham Amin Hassoun a Lebanese-born Palestinian who lived in Broward County, Fla.;, Mohammed Hesham Youssef, an Egyptian who lived in Broward County; Kifah Wael Jayyousi, a Jordanian national and U.S. citizen who lived in San Diego; and Kassem Daher, a Lebanese citizen with Canadian residency status.

Hassoun also was indicted on eight additional charges, including perjury, obstruction of justice and illegal firearm possession.

Hassoun, a Palestinian computer programmer who moved to Florida in 1989, was arrested in June 2002 for allegedly overstaying his student visa. Prosecutors previously described him as a former associate of Padilla.

NBC’s Pete Williams reported that Padilla was being transferred from Pentagon custody and into the criminal courts system on Tuesday, ending the long legal battle over whether he should be in military custody.

The Bush administration had earlier resisted calls to charge and try Padilla in civilian courts.

Read the Justice Department documents
Padilla indictment (pdf)
Padilla transfer memo (pdf)
Padilla notice of release (pdf)

No Supreme Court showdown
The indictment avoids a Supreme Court showdown over how long the government could hold a U.S. citizen without charges. The high court had been asked to decide when and for how long the government can jail Americans in military prisons.

“They’re avoiding what the Supreme Court would say about American citizens (as enemy combatants). That’s an issue the administration did not want to face,” said Scott Silliman, a Duke University law professor who specializes in national security. “There’s no way that the Supreme Court would have ducked this issue.”

Padilla’s lawyers had asked justices to review his case last month, and the Bush administration was facing a deadline next Monday for filing its legal arguments.

“The ‘evidence’ the government has offered against Padilla over the past three years consists of double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation,” his lawyers said in their earlier appeal.

Padilla, a former Chicago gang member, was arrested at Chicago’s O’Hare International Airport in 2002 after returning from Pakistan. The federal government has said he was trained in weapons and explosives by members of al-Qaida.

Padilla has been held at a Navy brig in South Carolina. Following the indictment, which was handed up last Thursday, President Bush sent a memo to Defense Secretary Donald Rumsfeld ordering Padilla transferred to the federal detention facility in Miami.

The Associated Press contributed to this report.

http://www.msnbc.msn.com/id/10152846/

It seems the Bushites are backing down from a challenge to the 'enemy combatant' status. The question is why?

Note there is nothing about the alleged 'dirty bomb' or his alleged plans to blow up American hotels.

[Redleg]

Well, after three years of solitary confinement without charges, it seems Padilla may not be an 'enemy combatant' after all.



It seems the Bushites are backing down from a challenge to the 'enemy combatant' status. The question is why?

Several possiblities - that when reviewing the specifics of the investigation into his activities they concluded that he did not fit into the category of enemy combatant.

Or it could be that they did not want to have the Supreme Court dicate to them that they were possibily violating the rights of an American Citizen and and have the court throw out any evidence that they have gathered against him.

Or it could be that once again common sense is beginning to come about in the administration over how long you can hold someone without charges or trail.

Or it could be simply that with the election cycle coming very close - and to maintain at least a simple majority in both houses that the adminstration is trying to clear up as much loose bagage as possible so that the republicans running for office might not have to answer why they supported the adminstration in its actions.

Or it could be a combination of all of the above.

Take your pick - or come up with others - its all guess work on our part

[Goofball]

It seems to me that any lawyer worth his salt should be able to have this thrown out in about 5 seconds. Isn't there something coming into play here about a person's right to a "speedy trial?"

Can one of our resident sharks... oops... I mean "lawyers" comment on that for me?

[Seamus Fermanagh]

It seems to me that any lawyer worth his salt should be able to have this thrown out in about 5 seconds. Isn't there something coming into play here about a person's right to a "speedy trial?"

Can one of our resident sharks... oops... I mean "lawyers" comment on that for me?

Not a lawyer, thank God, but here's an answer:

While classified as an "enemy combatant" the "speedy trial" clock is not ticking. If re-classified, then he would need to proceed within the normal federal judicial process.

Personally, however, I am unhappy with his case and always have been. Unlike the others, he is a US citizen and was not apprehended under arms on foreign soil. I think he should get a court, a jury, etc. for a treason trial (appropriate process safeguards, but sealed records if necessary for national security reasons).

[Goofball]

Not a lawyer, thank God, but here's an answer:

While classified as an "enemy combatant" the "speedy trial" clock is not ticking. If re-classified, then he would need to proceed within the normal federal judicial process.

Exactly. I would think that a decent lawyer could attack this from the angle that this guy was never an enemy combatant, so the clock indeed was ticking, and the case should be thrown out on the speedy trial rule.

[Grey_Fox]

If he's American-born, why was he held as an 'enemy combatant'? Why didn't they just charge him with treason and fry him if found guilty?

[solypsist]

even john walker lindh got a speedier trial, and he was found with the taliban and in every sense fit the enemy combatant bill.

[Seamus Fermanagh]

If he's American-born, why was he held as an 'enemy combatant'? Why didn't they just charge him with treason and fry him if found guilty?

My point exactly. If he had not renounced US citizenship, was captured domestically, and was not "under arms" at the time, then we have an alleged criminal and not an enemy combatant. Most of the other detainee decisions I have agreed with, but this one -- no.

[Hurin_Rules]

If he's American-born, why was he held as an 'enemy combatant'? Why didn't they just charge him with treason and fry him if found guilty?

Ah, but you misunderstand the daring of the Bushite claim about 'enemy combatants'.

According to Bush et al., even American citizens not captured abroad can be labelled 'enemy combatants'. The president is free to make such a designation, it cannot be challenged in court and American citizens can be locked up indefinitely with no charge and no appeal.

Fun stuff, eh?

[Xiahou]

Personally, however, I am unhappy with his case and always have been. Unlike the others, he is a US citizen and was not apprehended under arms on foreign soil. I think he should get a court, a jury, etc. for a treason trial (appropriate process safeguards, but sealed records if necessary for national security reasons).

Seconded.
Try him for treason.

[Tribesman]

Seconded.
Try him for treason.
How do the charges that they have been able to file after such a long effort have anything to do with treason ?
Is there any statute covering treason and plotting to kill people in another country ?

[Xiahou]

Seconded.
Try him for treason.
How do the charges that they have been able to file after such a long effort have anything to do with treason ?
Is there any statute covering treason and plotting to kill people in another country ?

He's accused of being part of a domestic terror cell, in addition to providing material support to our enemies.
Being in a local terror cell and providing support to terrorist organizations sounds similar to treason to me.

[QwertyMIDX]

Treason is a silly concept anyway, just because I was born between some arbitrary set of lines I'm not allowed to want the violent overthrow of a particular government. It's a strange world we live in.

[Watchman]

Well, maintaining a certain amount of monopoly on violence is sort of one of the defining features of modern states. They also tend to get a little irate over the idea of their own citizens conspiring violence against them - no news there.

That aside, IMHO the whole "enemy combatant" deal is about the damn biggest piece of absurd, baseless and purposefully idiotic legalist mumbo-jumbo in quite a while. Grade A+ organic fertilizer, expect I suspect anything grown with it will end up crooked...

[QwertyMIDX]

Well, maintaining a certain amount of monopoly on violence is sort of one of the defining features of modern states. They also tend to get a little irate over the idea of their own citizens conspiring violence against them - no news there.

Obviously not suprising, doesn't make it any less strange though.

[Redleg]

That aside, IMHO the whole "enemy combatant" deal is about the damn biggest piece of absurd, baseless and purposefully idiotic legalist mumbo-jumbo in quite a while. Grade A+ organic fertilizer, expect I suspect anything grown with it will end up crooked...

So presedence based upon actions of enemy agents attempting sabatoge is absurd in your opinion. You might want to just criticize how the Bush Adminstration is applying the standard of the presedence.

It presedence was used to try two German agents who attempt sabatoge in the United States during WW2.

[QwertyMIDX]

Whenever this kind of terminology is used it's nothing more than exploiting a legal loophole in order to avoid treating prisoners by the standards outlined in the Geneva Convention.

[Redleg]

Whenever this kind of terminology is used it's nothing more than exploiting a legal loophole in order to avoid treating prisoners by the standards outlined in the Geneva Convention.

Ah but you are mistaken - the term was used to actually comply to a higher standard then both the Hague Convention and the Geneva Conventions. It was establish with valid presedence in the trail and execution of German spies caught in the United States conducting an act of Sabatoge.

There is valid criticism on how the Bush Adminstration has used the term - but don't let the Bush Adminstrations use of the term fool you on the legal validity of the term.

[Hurin_Rules]

I think we probably disagree on this, Redleg, but it might help me if you could provide some examples of usage of the term 'enemy combatant' before the present controversy over the 'War on Terror'?

It seems to me that much of the present policy was simply 'made up' by Gonzalez, Rumsfeld, et al. in the last few years. I don't see the phrase anywhere in the Geneva or Hague Conventions (correct me if I'm wrong). Moreover, it seems to me that the saboteurs in WWII were still given rather speedy trials, defenders, charges, etc.-- all of which the 'enemy combatants' in Guantanamo have been denied. If there are firm rules for this sort of thing, then where are they, beyond the musings and loophole-exploiting of the Bushites (little of which, it would seem, is able to pass muster in a court of law, as the Padilla case and the supreme court rulings have indicated).

[Redleg]

I think we probably disagree on this, Redleg, but it might help me if you could provide some examples of usage of the term 'enemy combatant' before the present controversy over the 'War on Terror'?

It was used to try two captured german agents on American Soil.

The phrase enemy combatant was "invented" by the US Supreme Court in the 1942 ruling "Ex Parte Quirin".

......

Definition
As defined by President Franklin D Roosevelt's proclamation number 2561, this definition applied to

all persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war....
[edit]... and Application
The power of the President to declare enemy combatants was not used until the aftermath of September 11, 2001. Once determined by the president to be an enemy combatant, persons may be held indefinitely and are subject to the jursidiction of military tribunals. Appeals or privilege to access to civilian courts is only granted to enemy combatants with the approval of both the Attorney General and Secretary of Defense.

Although the power to declare enemy combatants was upheld by the Supreme Court in 1942, it is currently under review (as of May 2004) and the future of this authority is unknown.

"It is the President of the United States who designates people as Enemy Combatants on information passed to him via the military or intelligence agencies. There is no right to appeal such a decision and no one is allowed to see the evidence for the designation. In effect it gives the President the power to indefinitely detain any US citizen without trial, charge or an explanation."

Source: adequacy.org (http://www.adequacy.org/public/stori...554.1907.html).

http://www.sourcewatch.org/wiki.phtm...nemy_combatant

It seems to me that much of the present policy was simply 'made up' by Gonzalez, Rumsfeld, et al. in the last few years. I don't see the phrase anywhere in the Geneva or Hague Conventions (correct me if I'm wrong). Moreover, it seems to me that the saboteurs in WWII were still given rather speedy trials, defenders, charges, etc.-- all of which the 'enemy combatants' in Guantanamo have been denied. If there are firm rules for this sort of thing, then where are they, beyond the musings and loophole-exploiting of the Bushites (little of which, it would seem, is able to pass muster in a court of law, as the Padilla case and the supreme court rulings have indicated).

Again criticism of the Bush Adminstration's use of the term and how they are going about the process is valid. However to think that Bush just made up the term is incorrect.

[Tribesman]

it might help me if you could provide some examples of usage of the term 'enemy combatant' before the present controversy over the 'War on Terror'?

Try the Nuremburg and other post war war-crimes trails relating to the "commando order" and its extentions , nice stuff if you want a bad example of "illegal enemy combatants" definitions and practices .

It was establish with valid presedence in the trail and execution of German spies caught in the United States conducting an act of Sabatoge.

It was established but not used , they were tried under the Hauge rules wern't they ?
As in ...The power of the President to declare enemy combatants was not used until the aftermath of September 11, 2001.

[Hurin_Rules]

Thanks Redleg, that helps a lot.

It seems by the above definition, then, that American citizens cannot by definition be enemy combatants, doesn't it?

[Redleg]

it might help me if you could provide some examples of usage of the term 'enemy combatant' before the present controversy over the 'War on Terror'?

Try the Nuremburg and other post war war-crimes trails relating to the "commando order" and its extentions , nice stuff if you want a bad example of "illegal enemy combatants" definitions and practices .

It was establish with valid presedence in the trail and execution of German spies caught in the United States conducting an act of Sabatoge.

It was established but not used , they were tried under the Hauge rules wern't they ?
As in ...The power of the President to declare enemy combatants was not used until the aftermath of September 11, 2001.

The link provides a partial answer to your statement, not perfect but well enough for us non-lawyers to understand.

Just down from the sentence you quoted - Although the power to declare enemy combatants was upheld by the Supreme Court in 1942, it is currently under review (as of May 2004) and the future of this authority is unknown.


Now the assumption on my part is that if it wasn't being used in 1942 - it would not have gone in front of the Supreme Court.

[Redleg]

Thanks Redleg, that helps a lot.

It seems by the above definition, then, that American citizens cannot by definition be enemy combatants, doesn't it?

Hence or is it hince - you have my earlier statement of.

Again criticism of the Bush Adminstration's use of the term and how they are going about the process is valid. However to think that Bush just made up the term is incorrect.

[Tribesman]

An interesting case , has Congress passed a declaration of war on Al-Qaida ?
Has Padilla become a citizen of Al-qaida ????
What is the government of Al-qaida , what uniforms does it wear how does it pay its forces and where is the front line , is it bound by the laws of war and when did it sign any conventions ?
it is currently under review (as of May 2004) and the future of this authority is unknown
I can see why , as it isn't designed for this new "war"
Nice to see that Murphy decided to sit out on that case , probably went to the pub instead

Edit to add It was used to try two captured german agents on American Soil.
What about the other 5 ?

[Redleg]

Edit to add It was used to try two captured german agents on American Soil.
What about the other 5 ?

Not sure - I am only aware of the two. However I wonder if a search of the internet might provide the answer to that question.

[Redleg]

An interesting case , has Congress passed a declaration of war on Al-Qaida ?

The removed themselves from the responsiblity of declaring war with the 1973 War Powers Act and the Authorization of Force - Joint Resolution dated in late 2001 early 2002.

Has Padilla become a citizen of Al-qaida ????

Not a necessary requirment - however one must indeed look at the declared citizenship of the person in question.

What is the government of Al-qaida , what uniforms does it wear how does it pay its forces and where is the front line , is it bound by the laws of war and when did it sign any conventions ?

You have confused yourself, Maybe you should go have a talk with George Bush he might be able to explain it to you.

it is currently under review (as of May 2004) and the future of this authority is unknown
I can see why , as it isn't designed for this new "war"
Nice to see that Murphy decided to sit out on that case , probably went to the pub instead

I refere you back to my intital statement

Again criticism of the Bush Adminstration's use of the term and how they are going about the process is valid. However to think that Bush just made up the term is incorrect.

[Hurin_Rules]

The 'review' that the enemy combatant matters were under may actually be the case against Padilla (which was only 'under review' because he challenged it in court). Since the Bushies have backed down and transferred him to the civilian justice system, it seems we won't have any official ruling on the constitutionality of the 'enemy combatant' opinions for some time. This was probably the intent of the Bushies in transferring the case, BTW.

[Redleg]

The 'review' that the enemy combatant matters were under may actually be the case against Padilla (which was only 'under review' because he challenged it in court). Since the Bushies have backed down and transferred him to the civilian justice system, it seems we won't have any official ruling on the constitutionality of the 'enemy combatant' opinions for some time. This was probably the intent of the Bushies in transferring the case, BTW.

I refer you to this comment of mine - by the way I believe its a combination of three of them. Minus the third one of course. ( I numbered them for ease of understanding0

1. that when reviewing the specifics of the investigation into his activities they concluded that he did not fit into the category of enemy combatant.

Or 2. it could be that they did not want to have the Supreme Court dicate to them that they were possibily violating the rights of an American Citizen and and have the court throw out any evidence that they have gathered against him.

Or 3. it could be that once again common sense is beginning to come about in the administration over how long you can hold someone without charges or trail.

Or 4. it could be simply that with the election cycle coming very close - and to maintain at least a simple majority in both houses that the adminstration is trying to clear up as much loose bagage as possible so that the republicans running for office might not have to answer why they supported the adminstration in its actions.

Or it could be a combination of all of the above.

[Tribesman]

You have confused yourself
Read through the 1942 case ruling , or seven cases thrown into one