nd detained in a South Carolina brig for years based on the U.S. executive's assertion that he was an "enemy combatant" bent on helping al Qaeda by exploding a radiological device -- known as a "dirty bomb" -- inside the United States. At the Supreme Court in 2004, along with Rasul v. Bush and Hamdi v. Rumsfeld, Padilla's case was sent back to the trial court on jurisdictional grounds. Only when a 2d round of Supreme Court litigation loomed did the executive transfer Padilla to the custody of the federal criminal court in Miami, where he and 2 others've been on trial on charges unrelated to any "dirty bomb" plot.Reporters, commentators -- even, at times, the judge -- have called the prosecution case thin. And as long ago as oral argument in 2004, questions have been raised about the harsh conditions of detention and interrogation that Padilla endured. (The photo, from a government video, depicts Padilla, shackled, blindered, and deafened, on his way to the dentist.) Those conditions haven't been before the jury, though, and the brand of "terrorist" might be hard to shake even in a thin case. My views on the case've just been published in the conclusion to Punish or Surveil, my contribution to a national security symposium edition of Iowa's international law journal, Transnational Law & Contemporary Problems. A sample:
Even an acquittal would not, by that fact alone, mean failure. Built into the American system of criminal justice is a tolerance for acquittal. A “fundamental value determination of our society,” to repeat Justice John M. Harlan’s oft-repeated maxim, is “that it is far worse to convict an innocent man than to let a guilty man go free.” This is scarcely less the case when acquittal results because governmental misconduct has placed certain evidence outside the bounds of a properly constituted court. Judicial exclusion of such evidence -- indeed, a prosecutorial decision not even to adduce such evidence -- serves the liberty interests both of the defendant on trial and of the society at large.
For a full understanding of the case and its potential consequences, you can do no better than to read Warren Richey's 3-part series just concluded in the Christian Science Monitor. The article titles tell the story:
► "US terror interrogation went too far, experts say; Reports find that Jose Padilla's solitary confinement led to mental problems."
► "US Gov't broke Padilla through intense isolation, say experts; Despite warnings, officials used 43 months of severe isolation to force Jose Padilla to tell all he knew about Al Qaeda."
► "Beyond Padilla terror case, huge legal issues; His detention and interrogation in the US raises basic constitutional questions."
Today's Monitor editorial commenting on the series states:
[T]he US military used terror -- Padilla had little or no human contact for more than three years -- to fight terror. ...
The jury well may find Padilla guilty, but it may also see the injustice done in his case, and decide otherwise.
Victory in war is sometimes a victory simply for the rule of law.
