Jose Padilla Revisited

In Jose Padilla: No Charges and No Trial, Just Jail, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute, wrongly criticizes the detention of suspected unlawful combatant Jose Padilla:


Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an “enemy combatant,” then proclaiming that the court may not second-guess his designation.

Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence.

Except that those detained as enemy combatants do have a way to assert their innocence, as in the very case Levy goes on to cite next, the Hamdi case:


That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, “With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel.” Judge Wilkinson upheld Hamdi’s detention but pointedly noted that Hamdi’s battlefield capture was like “apples and oranges” compared to Padilla’s arrest in Chicago. “We aren’t placing our imprimatur upon a new day of executive detentions,” Wilkinson cautioned.

While Levy inexplicably fails to mention it, Hamdi’s right to a habeas corpus hearing was upheld by the courts. So, even though the Bush administration may try “proclaiming that the court may not second-guess his [Padilla’s] designation,” the courts have disagreed, making it so that those detained as enemy combatants can assert their innocence in their habeas corpus hearings. If they can show that they are not enemy combatants, then they can get out of military detention and either be turned over to the criminal justice system or be freed entirely if there are no criminal charges against them.


An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Today, we have not had from Congress any statute that authorizes Padilla’s detention.

I’m surprised that such an eminent legal authority as Mr. Levy has never heard of the Uniform Code of Military Justice (UCMJ), enacted by Congress back in the 1950s, which authorizes the detention and trial by military tribunal of those suspected of war crimes (like unlawful belligerency), such as Padilla.


Yes, Congress enacted the PATRIOT Act, which says that non-citizens suspected of terrorism can be detained, but only for seven days. After that, they have to be released or charged, unless the attorney general certifies every six months that they present a security risk.

In other words, the PATRIOT Act authorizes the indefinite detention of non-citizens suspected of terrorism as long as the attorney general certifies every six months that they present a security risk.


Two months earlier, Congress had passed a resolution empowering the president to use all necessary force against the 9/11 terrorists. But that resolution surely did not give the administration unfettered discretion to detain citizens without charge.

Why not? There isn’t any exception made in that Congressional Resolution saying that all necessary force may be used against the terrorists who made the 9/11 attacks, except when it comes to unlawful combatants who happen to be U.S. citizens.


If it had, then the ensuing PATRIOT Act would have afforded more protection to aliens than to citizens. In the wake of the 9/11 attacks, that proposition is incredible.

Perhaps the PATRIOT Act itself doesn’t give more protection to foreigners than citizens, but the Executive Order authorizing military tribunals for captured terrorists does. Only non-citizens may be tried by military tribunal under that Executive Order, despite both case law (Quirin) and statute law (the UCMJ) saying that citizens may be tried by military tribunal. In combination with the executive detention policy, the result is that both foreigners and citizens may be indefinitely detained as enemy combatants, but citizen unlawful combatants may not be tried by military tribunal, they must be tried in the U.S. criminal courts.


Reasonably construed, Congress’ resolution on the use of military force triggered the president’s commander-in-chief authority. He could then order seizure of enemy soldiers and detention of persons found in a zone of active combat. But he could not order the imprisonment, without charge, of an unarmed non-soldier far from active combat, especially a U.S. citizen on our own soil.

Why can’t enemy combatants be detained outside “a zone of active combat”? Where, exactly, are these zones, anyway? Where are their borders? If an enemy combatant starts out in such a zone, then gets out of one in the process of fleeing from those who are chasing him in the attempt to capture him, does that mean he gets away, as far as executive detention is concerned? That would be contrary to the international laws of war as codified in the Geneva Convention, to which the US is signatory.

Levy’s portrayal of Padilla, as “an unarmed non-soldier,” and “a U.S. citizen on our own soil” (soil he loves so much that he stands accused of conspiring with Al Qaeda to detonate a radiological bomb on it) is touching, but it is a war crime for enemy combatants not to bear arms openly, as well as for them to operate out of uniform. Levy seems to take Padilla’s unarmed, un-uniformed status as evidence that he deserves to be treated better than a POW, but it is actually evidence that he deserves worse.


Nor is the administration justified in its reliance on Ex parte Quirin, the Supreme Court case involving eight Nazi saboteurs, one of whom was an American citizen. The executive branch acted in Quirin in accordance with congressional authorization.

Padilla has also been detained in accordance with congressional authorization – the Congressional Resolution, and the UCMJ.


The eight Nazis were represented by counsel, charged, tried, and convicted.

As I’m sure Padilla will be, once his detention is over and he’s turned over to the civil courts to be tried, hopefully, for treason.


Here, by contrast, Padilla has been denied any chance to defend himself. He has seen no lawyer; he has not been charged, much less tried and convicted.


Yeah, funny thing, the Bill of Rights only guarantees the right to a lawyer to those who are being criminally charged. Padilla’s not, so he has no such right until he’s charged.


And he has been imprisoned notwithstanding a 30-year-old statute that expressly forbids the unauthorized detention of U.S. citizens.


Yes, because the UCMJ authorizes the detention of U.S. citizens, including those suspected of committing the war crime of unlawful belligerency.


Padilla may deserve the treatment he is receiving — perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney.


Yes, when and if they are charged.


Congress must first set the rules.


As was done in the UCMJ.


Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution.


Padilla still has a right to a habeas corpus hearing in which he can challenge the constitutionality of his arrest and imprisonment, just as did Hamdi.

13 thoughts on “Jose Padilla Revisited”

  1. “I merely presume that there is adequate evidence to suspect him of being guilty, and that such evidence is not available for those who truly do love their countries.”

    So Tim, you are saying there cannot be a circumstantial prima facie case against an innocent man who loves his country?

    Assuming for the sake of argument that Padilla is innocent with regard to any accusations against him, what would lead you to conclude he does not love his country?

    Your every response demonstrates that you’ve already concluded Padilla is a traitor based on uncontested representations made by the government. Since he’s a traitor in your mind you see no reason to grant him the rights the framers clearly intended for all citizens.

  2. Sure, there CAN be enough reason to suspect someone of being an enemy combatant, where that person ends up being innocent. I just don’t think it’s terribly likely, especially given the fact that we have so few cases – a maximum of two, if both Hamdi & Padilla are innocent – in the past half-century or so since the Quirin case in which the military detention & trial of U.S. citizen enemy combatants.

    Padilla’s alleged treason actually has no bearing whatsoever upon whether he may be rightfully detained as an enemy combatant. “Traitor” and “enemy combatant” are not the same things, they are two different categories. Admittedly, there is some overlap, but the two sets merely intersect. There are enemy combatants who are not traitors, and there are traitors who are not enemy combatants.

    Traitors who are not enemy combatants must be tried in the civil courts, unless there is a state of martial law in which the civil courts are inoperable. (See Ex Parte Milligan) Enemy combatants may be detained without having to be charged, regardless of whether they are traitors. If they are also traitors, then they may be prosecuted for treason after their detention.

    As for “the rights the framers clearly intended for all citizens,” those rights don’t include the right to be an enemy combatant without being detained by the U.S. military upon capture.

  3. Once again, I don’t presume his guilt. I merely presume that there is adequate evidence to suspect him of being guilty, and that such evidence is not available for those who truly do love their countries.

    I’m not sure what you mean when you say that “a prima facie case is clearly not grounds for suspending his constitutional rights.” Do you mean that in order for him to be detained indefinitely as an enemy combatant he must first be convicted of being an enemy combatant? Sorry, but people don’t have to be convicted in order to be detained. Conviction as an unlawful combatant comes after one’s trial by military tribunal, after one’s detention as an enemy combatant.

    An analogy for your position in criminal justice would be saying that someone must first be convicted of a crime before they can be arrested as a suspect.

  4. What, me, imply that someone who’s only been accused by the Attorney General of conspiring with Al Qaeda to set off a dirty bomb in the USA doesn’t love his country? God forbid!

    As for your question about what the State has to do to prove that you’re an enemy combatant, there are many possible ways to prove that someone is an enemy combatant, so it’s impossible to answer your question as phrased.

    Perhaps a better way to put it would be this: if Padilla has his habeas corpus hearing, and the State presents evidence making a prima facie case that he did in fact conspire with Al Qaeda to set off a dirty bomb in the USA, would that be adequate justification for thinking he is an enemy combatant?

  5. “What, me, imply that someone who’s only been accused by the Attorney General of conspiring with Al Qaeda to set off a dirty bomb in the USA doesn’t love his country? God forbid! ”

    It only follows if he’s guilty Tim; you said you didn’t presume he was. Clearly you do, which I think is really why you don’t mind his rights being trashed. But look how far you’ve lowered the bar for the state….

    I’d bet you $10 Padilla is never convicted of conspiring to set off a dirty bomb, but I can’t collect after never.

    “As for your question about what the State has to do to prove that you’re an enemy combatant, there are many possible ways to prove that someone is an enemy combatant, so it’s impossible to answer your question as phrased.

    Perhaps a better way to put it would be this: if Padilla has his habeas corpus hearing, and the State presents evidence making a prima facie case that he did in fact conspire with Al Qaeda to set off a dirty bomb in the USA, would that be adequate justification for thinking he is an enemy combatant?”

    A prima facie case against him is clearly not grounds for suspending his constitutional rights, the framers are spinning in their graves.

    And I don’t know that the government even has to present a prima facie case, you may well find that it’s entirely up to the President to determine his status as an enemy combatant.

  6. If you don’t assume Padilla’s guilt then what is the phrase “soil he loves so much that he stands accused of conspiring with Al Qaeda to detonate a radiological bomb on it” about?

    It seems clear to me that you are implying Padilla does not love this country, and I wonder upon what basis you deduce this if you don’t assume his guilt.

  7. “In a habeas corpus hearing, the government would bear the burden of proving that the detainee was an enemy combatant. ”

    And what is that burden? If the President designates you an enemy combatant what does the state have to do to prove that you are?

  8. “soil he loves so much that he stands accused of conspiring with Al Qaeda to detonate a radiological bomb on it”

    Where has Padilla been charged with that? Not in any court that I know of.

    It’s chilling how you assume his guilt based only on representations made by government officials, representations which in and of themselves provide nothing like proof beyond reasonable doubt, while cheerfully defending those who would deny him any court in which to defend himself.

    The charge may be true or not, the point here is that the truth doesn’t matter because the government doesn’t have to try the case. How this could be peachy with any sort of libertarian is quite beyond me.

  9. The way they would show they weren’t enemy combatants would be by refuting the evidence that they were. In a habeas corpus hearing, the government would bear the burden of proving that the detainee was an enemy combatant.

    I said that Padilla had been “accused,” not that he’d been charged. In fact, I said several times that he had not been charged. Furthermore, not only do I not assume his guilt, I made sure that I called him a suspected unlawful combatant.

    The truth does matter, and the government will eventually have to either try the case or let him go. Meanwhile, the government has to show in his habeas corpus hearing that there is sufficient grounds for detaining him as an enemy combatant.

  10. “If they can show that they are not enemy combatants, then they can get out of military detention…”

    And what is the standard by which they can do that Tim?

    If Tim Starr were designated an enemy combatant by the administration, how would you show you were not in fact an enemy combatant?

  11. “Sure, there CAN be enough reason to suspect someone of being an enemy combatant, where that person ends up being innocent. I just don’t think it’s terribly likely, especially given the fact that we have so few cases – a maximum of two, if both Hamdi & Padilla are innocent – in the past half-century or so since the Quirin case in which the military detention & trial of U.S. citizen enemy combatants.”

    Meaning you think it very likely that Padilla is an enemy combatant, so likely that you often make statements which assume his guilt, like: “soil he loves so much that he stands accused of conspiring with Al Qaeda to detonate a radiological bomb on it”.

    When you routinely talk like that and further admit you think it highly unlikely he isn’t guilty I think it’s perfectly fair to say you assmue his guilt. If you were honestly skeptical of his guilt you wouldn’t be publicly drawing conclusions about his love of country from uncontested representations.

    Now, who is entitled to decide if Padilla actually is an enemy combatant, and by what standard must it be judged?

  12. You’re still misinterpreting my position, but it’s nice to see you’ve dropped the one about my supposedly saying it’s OK for him to be detained as an enemy combatant because I’m supposedly convinced he’s a traitor.

    To say that someone has been accused of something is not to assume their guilt. As for those “uncontested representations,” you seem to think that the descriptions of Padilla as a participant in an Al Qaeda dirty-bomb conspiracy are uncontested because he hasn’t been allowed to contest them. In fact, he has been allowed to contest them in his habeas corpus hearing. He has even been allowed to have a lawyer represent him in that habeas corpus hearing, even though the right to legal counsel in habeas corpus hearings is not guaranteed in the Bill of Rights.

    What I conclude from the fact that the representations of him remain uncontested is either that he is unable to contest them, or that he is trying to argue as many technicalities as he can before trying to contest them.

    Your last question is to vague to be answerable except in equally vague terms: Everyone is entitled to decide if Padilla’s an enemy combatant, and it must be judged by the standard of reality.

  13. “You’re still misinterpreting my position, but it’s nice to see you’ve dropped the one about my supposedly saying it’s OK for him to be detained as an enemy combatant because I’m supposedly convinced he’s a traitor. ”

    You are convinced he’s a traitor Tim, you want him tried for treason. And I do think this conviction makes you amenable to whatever the government wants to do about it.

    “As for those “uncontested representations,” you seem to think that the descriptions of Padilla as a participant in an Al Qaeda dirty-bomb conspiracy are uncontested because he hasn’t been allowed to contest them. In fact, he has been allowed to contest them in his habeas corpus hearing. He has even been allowed to have a lawyer represent him in that habeas corpus hearing, even though the right to legal counsel in habeas corpus hearings is not guaranteed in the Bill of Rights.”

    He’s been allowed to contest them in his habeas corpus hearing? When exactly was that hearing? Uh no, he has not been allowed any such hearing. Nor to my knowledge has he been allowed any communication with an attorney since being declared an enemy combatant.

    Assuming he ever gets a habeas corpus hearing, what exactly will he be allowed to do to contest the charge that he’s an enemy combatant?

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