Padilla Gets His Day in Court

Ann Schneider Apr 28, 2007

By Ann Schneider

After three years and eight months of solitary confinement in a naval brig, Jose Padilla will finally receive his day in court. Gone are charges that he planned to set off a radioactive “dirty bomb.” Bush and Cheney had been using Padilla to test whether the courts would allow them to suspend habeas corpus and routinely use torture, but after the June 2004 ruling in Hamdi that a “state of war is not a blank check for the President,” the administration decided to try to keep the Padilla case away from the Supreme Court. It succeeded, but what it lost was its credibility before formerly sympathetic judges.

At first the government said Padilla could not have an attorney because “Only after such time as Padilla has perceived that help is not on the way can the U.S. reasonably expect to obtain all possible intelligence information from Padilla. … Providing him access to counsel now … would irreparably break the sense of dependency and trust that the interrogators are attempting to create.”

The government gradually modified its extreme position as federal judges began to say no to the administration, but the initial approach was to aggressively seek review in order to set precedent.

Lately, Padilla’s lawyers sought to have the case dismissed due to outrageous government conduct. Padilla was confined in a windowless room 24 hours a day for nearly four years, slept on a steel frame bed with no mattress, was given injections and had noxious fumes pumped into his cell. They argued that this treatment had rendered Padilla incompetent to stand trial, but Miami Federal District Judge Marcia Cooke cited the fact that Padilla signed an affidavit as proof he was able to communicate with his lawyers. Judge Cooke had dismissed some charges against Padilla, finding that it was double jeopardy to try him on both terrorism charges and conspiracy to murder. The Eleventh Circuit reinstated all charges, and Padilla appealed to the Supreme Court.

While the nine justices were voting whether to accept the case, the government completely changed course and asked to move the case to Miami to try him for charges relating to support for Muslims in Bosnia in the 1990s. Having been rebuked in Hamdi, government officials wanted to back down. Their argument that the President had the power to designate anyone in the world an enemy combatant and hold him or her without trial could wait for another day.

To their great chagrin, conservative Judge Michael Luttig found the government’s move disingenuous and self-contradictory. Ultimately, the Supreme Court permitted the transfer, but not without a stern warning from Justice Anthony Kennedy.

Jury selection is now proceeding in federal district court in Miami and is expected to take the rest of April. The evidence will now consist entirely of intercepted phone calls, transcripts of some which were leaked to the press. The jury will have to decide guilt on the basis of remarks like “I’d like you to come to Tampa to meet some nice, uh, brothers.”

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