Jacob Sullum and Mike Lynch, both writing in Reason (and both of whom I admire greatly), hit the slippery slope in full stride in defense of Jose Padilla’s civil liberties. I take the force of their points, I really do (Sullum objects to preemptive arrests, Lynch to “government abuse of power”) — but still I’m not sold. Padilla’s association with Al Qaeda, his unwillingness to cooperate with authorities, his (alleged) connection to Zubaydah, the reams of intelligence info we’re not yet privy to…
Extraordinary circumstances call for extraordinary measures. If nothing else, Bush and Ashcroft have been willing to take the heat from civil libertarians and legal scholars for their detention decisions (and not, I don’t believe, because they’re engaging in some sinister power grab); so for the time being, I’m willing to give them the benefit of the doubt — though I try to do so on a case by case basis. Padilla’s name, after all, wasn’t simply pulled from some patsy hat. Right?
[update: Of course, my position might indicate that I’m playing “slutty cheerleader for the feds“; but in reality, I believe I’m making informed choices based on the information available and the situation at hand. Lest we forget, it’s just as easy to play willing fuck puppy to the majestic shaft of uninhibited civil liberties.
I posted this WS link earlier in the week, but I think it deserves a repeat listing. If you haven’t yet done so, go check out David Tell’s editorial on behalf of the Weekly Standard editors, “The Specter of Terrorism.” I think the piece raises very instructive points pertaining to our current debating tendencies over these important issues.
update the 2nd: UCLA Law Prof Eugene Volokh takes a comparative look at military vs. civilian detention and interrogation
update the 3rd: More from Volokh on what might prove to be a Miranda workaround for civil interrogation — though one that doesn’t substantially alter the preference for military interrogation, so far as I’m concerned.]
Padilla is a low life scum, but his rights as a citizen have seemingly been violated. We need to develope a procedure to handle this situation, because it will happen more and more. I also am not worried about Bush and Ashcroft grabbing power, but what about the next guy or the next! It is the rights of the most vile that must be protected to ensure that the rest of us have them. FWIW, I think “illegal combatant” will work.
The big issue we are facing is the fact that, as technology progresses and people have access to increasingly dangerous equipment, that the way we enforce laws is eventually going to have to change, if we don’t want to see 200,000 people die some day because some crackpot organization managed to get its hands on a bio/chemical/nuclear weapon.
What’s more, the problem will become increasingly urgent as new ways to kill larger numbers of people with less manpower and training are developed. At some point, we will have to either learn to accept the deaths of millions of people at the hands of individual malcontents, or we have to start punishing crimes before they are committed. Either way, our society will lose something very dear to it.
If it really and truly came down to it, I would guess the US would choose the former, as the EU has already resolved to do. We may value our lives, but we value our freedom just a little bit more.
You had me until the end there, Tatterdemalian. But then you characterized our choices as being between our freedom and our lives, and that’s the hyperbole against which I’ve been recoiling.
Just because we need to strike a new balance between civil liberties and preemption (one aspect of all this nobody seems to be addressing is how rapid communications should impact law enforcement and legal niceties in the future) does not mean we have to make such stark, either/ or decisions between such grand signifiers as “life” and “freedom.”
When politicians and officers of the law disregard the Constitution criminals skate on technicalities period. How many criminals have gone free because the arresting officer neglected to inform him/her of their Miranda rights, because of lost or tainted evidence or because some cowboy law dog just couldn’t resist the temptation to slap the suspect around a little?
Personally I think Padilla is a pawn in all of this. He was arrested over a month ago and Ashcroft releases the information when it is most politically expedient. Bravo! They’re testing the waters. Seeing how far they can get with this. Lindh was a no brainer. Things get a little more murky with Padilla. What’s next?
If what the Administration is saying is true then I have very little sympathy for him and his predicament. My question is this: Can I now be arrested and detained because I was observed talking to a known drug dealer? After all, we are fighting a War On Drugs? What if my business partner is accused of being a slum lord or convicted of insider trading? Is the War On Poverty over yet?
Wait and see . . . Ashcroft is no different then my kid brother, “Give him an inch and he’ll take a mile.” You can piss and moan about me slippery sloapin’ it all you want but I just don’t trust these guys.
I’m not even interested in raising the slippery slope argument with you, Dre—not if you’re honestly equating the “War on Drugs” and the “War on Poverty” (in both cases, “war” is being used in its weak, metaphorical form) with the actual condition of war between a nationstate and a pan-national, ideological enemy intent on blowing our shit up and killing us all. Because that’s just simple buffoonery and doesn’t deserve a reasoned response.
I’m certainly willing to debate these issues—I’m not some apologist for the Bushies—but I ask again that those of you who wish to debate these points please go read David Tell’s piece first.
I don’t see how al Muhajir’s rights have been violated, or that he’s being held outside the law. He filed a write of habeas corpus, it was reviewed and denied by a federal court, and the Senate conducted closed hearings yesterday to ask the administration to explain itself.
I also fail to see how all of this should (yet) make me afraid of being picked up likewise in the War on Drugs or the War on Poverty. Strawman argument, nothing to discuss. When they lock up a citizen for those causes, without judicial review, confined to the brig, etc., let me know and I’ll worry.
Sure, there’s a real war on.
I do, though, worry that the administration is blurring the line between the literal meaning of war and the “weak, metaphorical form” Jeff G. described, just by calling it not “our war against the global network of Islamist terrorists”, but “the War on Terrorism.” The former might be won someday; the latter has been going on for centuries and will certainly last the rest of my life. I’m less willing to grant somebody extraordinary wartime powers if the war is by definition endless.
I’m glad they caught Padilla/Muhajir, I’m glad they’re holding him, and I actually understand to some extent the reasoning behind treating him as an unlawful enemy combatant. He’s a bad guy, he was working for the enemy in the war, and he may know things that are important for the war effort.
But I’m uneasy about the huge number of uncharged people who have been held as material witnesses, and I do wish that Fleischer and Ashcroft would stop treating concerns about wartime police powers as the illegitimate ravings of conspiracists, because it’s our duty as citizens to keep an eye on them, at least as much as the reverse. If Republicans were allowed to express these concerns about Janet Reno when she was fighting terrorists, I’m allowed to express them about Ashcroft.
Photodude’s blog has some good thoughts about this subject as well.
Unfortunately, Jeff, it may actually come down to such absolutes. Terrorists are masters of exploiting loopholes, and unless we exercise some really draconian, zero-tolerance law enforcement policies, the terrorists will eventually find some crack to slip through. If they also have the technology to wipe an entire continent clean of life when they finally slip through one of those cracks, well…
The 9-11 attacks are just one example of this. We thwarted numerous terrorist plans on the part of Al-Qaeda, we knew they were a threat, and yet they still managed to get twenty people into the US, even got them US flight training, and used them to destroy the WTC. Unless we severely curtail freedom in the US, there will always be another way to exploit our liberty, and there is obviously no shortage of derranged anti-Americans who are willing to give their lives to help find the right loophole.
A plague on those who are ascribing ersatz rights on behalf of Padilla. Notwithstanding enabling legislation, which has been declared since 911, his conduct violated prohibitions under American Murder statutes. Specifically, by both voluntarily accepting training in the production and use of weapons of mass destruction, and acting on direction to use such knowledge for homicidal purpose, Padilla participated in a criminal Conspiracy to commit Murder.
At Common Law, where consensus exhausts debate, viz a legal issue, the attending Statute or Precedent, is termed: a settled issue, or settlement. On that note, I invoke the famous Rosenberg-Conspiracy case wherein a couple of convicted traitors were executed on conviction for Conspiracy to facilitate production of weapons of mass destruction, on behalf of a foreign state. By assisting Soviet weapons development, the traitors aided the production of said weapons, which the enemy used for military-diplomatic purposes.
As for the “dirty-bomber”, he intended to produce and use deadly weapons against Americans, thus providing elements conducive to a determination that he engaged in a criminal Conspiracy to commit murder. There is a legal-factual basis for the arrest of Padilla. Based on information available to the public, I believe that the accused will be convicted.
On the notion of “settlement”, there has always been an overwhelming consensus within the liberal-democracies, that both constraint and freedom are elemental to a state of liberty. It is a perversity of judgement to place conduct which engages mortality interests of persons, outside the framework of constraint.
Lastly, on the issue of punishment, viz the Guantanamo Bay graduates of genocide school, they will suffer the same fate as the Rosenbergs. Everyone of them will be executed. That will be the first time that mass executions will be conducted within a democracy. But there is no other scenario.
Open question: what legal issues are settled, viz the Padilla case?
Y’all seem to be arguing in favor of laziness and against thorough police work.
They had a guy who was “exploring” the possibility of performing a terrorist act on behalf of Al Qaeda. They could have kept a close eye on him to determine who he made contact with and whether or not there were others involved, and whether his explorations seemed likely to bear fruit.
But they grabbed him before he had time to provide them with that information, on the assumption that they could brow-beat it out of him instead. But, of course, if he has any brains and any loyalty to his cause, he will probably keep as much of that information to himself as he can. So his premature arrest actually interfered with a fuller investigation as well as making his arrest and the prospect of his conviction more dubious.
It’s a mistake to assume that the conflict is between our Constitutional rights and our safety. The real conflict is between rights and safety on one side against grandstanding, laziness, and incompetence on the other.
I’m totally with Tatterdemalian. Jeff, you say his argument is too stark, too either/or, that it won’t actually come down to that, but consider what happened on September 11th.
What if the pilot who was chasing down Flight 11 had been ordered to shoot it out of the sky? Is that split-second enough for you? Wouldn’t the rights of all those people on board have to be exhaustively reviewed? What if it happens again as everyone expects that it will? Then what?
It is the government’s job—in my opinion, it’s one and only job—to protect people from attack. That would be me.
All these arguments, I’m sorry, really do seem like ‘the illegitimate ravings of conspiracists.’
I think you’ve misunderstood me, Melissa. I believe it’s the government’s job to protect people from attack, too. I just don’t think our choices boil down to either police state tactics or freedom—with the nod going toward freedom, in Tatterdemalian’s formulation.</i>”
In short, I’m saying we can make compromises between freedom and security if we stop acting as if every perceived encroachment on freedom is a step toward finding ourselves in a totalitarian regime. Spiriting Padilla away to a military facility is not the step just before we’re all tattooed and forced to meet curfew.
Here’s how <a href=”http://www.city-journal.org/html/eon_6_11_02hm.html”>Heather MacDonald put it </a>in the <i>City Journal</i>: “<i>…now we know why the U.S. is holding suspects
It occurs to me that part of the debate stems from whether or not people view Padilla’s case as “police work” or part of a military operation. I say it’s military, since we’re at war and he’s been running with the enemy. It’s disconcerting to allow military operations on home turf, but when we were attacked on home turf, I think that switched things a bit.
That’s well put, Craig.
I really misunderstood what you were saying b/c there is nothing in your clarification I don’t agree with. Clearly, I need to brush up on my textualist methodology.
I’m just so frustrated when people start screaming that the rights of the accused are in some kind of jeopardy. This kid Padilla popped someone and did 2 years for the crime. To me that illustrates that the criminal justice system is broken nearly beyond repair because of its slavish devotion to the defendant. And anyone who argues differently is usually a criminal defense attorney or someone looking to protect their stash (see above).
I have to agree with Craig—this isn’t a matter of police work. It’s a matter of war. We found a probably member of the enemy’s forces, established that he was, in fact, a member, and followed him into our territory.
At that point they had two choices—let him loose in O’Hare (and risk losing him in the crowd, or his getting hold of pre-positioned equipment and doing something horrible), or take him into custody immediately. They took him in.
Where I see mistakes being made is in the handling of Lindh, Massoui, and Reid. All of them should have been handed over to military custody, for trial as illegal combatants. That would have avoided half the pissing and moaning over Padilla.
If the Padilla case <b>is</b> a matter of war (and I’m still somewhat torn on this aspect), then there also needs to be a legal declaration regarding Posse Comitatus, does there not?
After all, military forces are FORBIDDEN, iirc, from participating in domestic law enforcement unless certain legal hurdles are first resolved (including, but not limited to, declaration of martial law, or other granting of law enforcement roles and obligations to the military).
While I believe that the authorization of force constitutes a de facto declaration of war, I don’t know (as I’m not a lawyer) whether or not the resulting conditions are sufficient to grant military forces the ability to operate in support of (or in lieu of) civil law enforcement authorities.
This then raises the question of whether Padilla falls under military or civil jurisdiction, I think?