A federal appeals court ruled today Jose Padilla, the so-called “dirty bomber,” can be held forever in jail as an enemy combatant and never allowed to defend himself at trial, although he is an American citizen and was arrested in this country.
The unanimous decision by a panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., significantly boosts the Bush administration’s secret program of jailing what it claims are key Al Qaeda and Taliban suspects around the world without filing criminal charges or holding trials in an effort to squeeze intelligence information from alleged terrorist operatives.
The ruling was reached by a three-member panel of the appellate court and was written by Judge Michael Luttig, who is considered by many to be on the short list of candidates to fill the open vacancy on the Supreme Court.
Padilla’s attorneys plan to appeal the case to the Supreme Court. But many believe it unlikely they will prevail there, making today’s ruling the all-but-final approval of Bush’s highly controversial use of executive authority to skirt America’s traditional legal process system and decide for himself who will go to trial and who will simply be held incommunicado.
(All emphasis in this post is mine.)
The editorial is unusual in several different ways. For one thing, it gives quite a different spin on the facts than does the opinion itself — which, in its first few lines, offers some facts omitted from the editorial that shed some light on the result:
Appellee Jose Padilla, a United States citizen, associated with forces hostile to the United States in Afghanistan and took up arms against United States forces in that country in our war against al Qaeda. Upon his escape to Pakistan from the battlefield in Afghanistan, Padilla was recruited, trained, funded, and equipped by al Qaeda leaders to continue prosecution of the war in the United States by blowing up apartment buildings in this country. Padilla flew to the United States on May 8, 2002, to begin carrying out his assignment, but was arrested by civilian law enforcement authorities upon his arrival at O’Hare International Airport in Chicago.
I would have liked to have seen some reference to Padilla’s adopted name, Abdullah al Muhajir, but this is otherwise a pretty good summary of the facts — most of which are omitted from today’s editorial.
There are many other unusual facts about the editorial. For example, it is signed, whereas editorials are usually unsigned. It is not explicitly designated an editorial, as editorials usually are. It is located in a portion of the newspaper’s web site usually reserved for news stories. And finally, it is written by Richard Serrano, a news reporter who has to my knowledge never before written an editorial.
How do I know it’s an editorial? Mostly from the language emphasized in the initial quote above, which says that Mr. al Muhajir can be “held forever” and “never allowed to defend himself,” in a “highly controversial” attempt to “skirt” the “traditional legal process system” which “boosts the Bush administration’s secret program” of trying to “squeeze” information from alleged terrorists.
I mean, that kind of language wouldn’t appear in an L.A. Times news story, would it?
P.S. This looks like one of those mid-afternoon first drafts. We’ll take a look at the final cut tomorrow.
UPDATE: Eugene Volokh’s post on the case reminds us that the Supreme Court has already established a process for enemy combatants to contest their designation — it’s just not a traditional trial. So the
editorial’s news article’s hysterical tone is overwrought; the only question is whether the location of the arrest (O’Hare’s international terminal) is different enough from a foreign country to require a traditional criminal trial that would not otherwise be required under Supreme Court precedent.
Prof. Volokh also notes that Justice Breyer may well decide that it is.
UPDATE x2: The Angry Clam makes a good point in the comments: the case depends entirely on Supreme Court interpretation of the AUMF, otherwise known as the Authorization for Use of Military Force Joint Resolution. That resolution was passed by Congress, and can be changed by Congress. So Congress can provide for those wonderful traditional legal protections for the Abdullah al Muhajirs of this world if it wants. Just something to keep in mind once this decision hits the papers tomorrow, and the nutcases start comparing the U.S. to a dictatorship.
UPDATE x3: The version that ran in today’s print edition was slightly better. It removes some of the inflammatory language, and (deeeeeep down in the story) tells the tale of al Muhajir’s trip to Afghanistan to fight against the U.S., and his training in explosives by al Qaeda. To some extent, let’s hear some kudos for the editors, who managed to temper Serrano’s zealotry on this issue to some extent.
I did find it irritating, however, to note the information included — and omitted — about the judges involved in this case. Serrano notes that the District Judge who ruled for Padilla was a Bush appointee, and suggests that Judge Michael Luttig, who wrote yesterday’s decision, should have recused himself. He does not mention that the other judges who joined yesterday’s unanimous decision were both Clinton appointees: M. Blane Michael and William Byrd Traxler Jr.