Patterico's Pontifications

9/9/2005

L.A. Times on Al Muhajir Padilla v. Hanft

Filed under: Civil Liberties,Court Decisions,Dog Trainer,Judiciary,Terrorism — Patterico @ 9:26 pm



The Los Angeles Times runs a surprising same-day online editorial on the case of Padilla v. Hanft, issued this morning by the U.S. Court of Appeals for the Fourth Circuit. The editorial opens:

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.

27 Responses to “L.A. Times on Al Muhajir Padilla v. Hanft”

  1. “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:”

    Where do the facts in the opinion come from? n1, p 7 tells us they are stipulated to be the government version.

    What spin! To have different facts than the government!

    actus (9982e6)

  2. Someone (the LA Times) didn’t read the opinion- it spends a good deal of time discussing the conditions necessary for the exercise of executive authority.

    If they don’t like it so much, call your congressman, and have them revoke the authorization of force. The panel’s decision was clear that congressional approval was necessary- this is not, as the government argued in its brief, an inherent executive power.

    Angry Clam (a7c6b1)

  3. Dude, actus, do you know what a stipulation is?

    Angry Clam (a7c6b1)

  4. “Dude, actus, do you know what a stipulation is?”

    Tell me. Tell me what other source of facts go into the opinion other than the government version. And whether it is “spin” to have different facts than the government.

    actus (9982e6)

  5. Dude, actus, do you know what a stipulation is?

    I take his answer to be: No, Clam. No, I don’t.

    Patterico (756436)

  6. Let me lay it out for you, actus:

    Padilla filed for summary judgment in the district court. In such things, facts are construed in the light most favorable to the non-moving party.

    Thus, Padilla’s attorneys, for the purposes of this motion and thus, the only facts relevant to this legal opinion, are those that the government says exists.

    That means that, no, there are no other facts than what the government says.

    Angry Clam (a7c6b1)

  7. “That means that, no, there are no other facts than what the government says.”

    For the purposes of the motion. But not for the purposes of what is happening to padilla. Its not spin to give different facts than the government.

    actus (3c0ce1)

  8. Legally, it is.

    Angry Clam (a7c6b1)

  9. It’s spin to omit facts that nobody disputes that most citizens would see as relevant to the controversy.

    Patterico (756436)

  10. “It’s spin to omit facts that nobody disputes that most citizens would see as relevant to the controversy.”

    It says not disputed for the purposes of summary judgement. I mean, you can spin with this:

    “, Abdullah al Muhajir,”

    But that’s not in the government version of events.

    actus (360e4d)

  11. Is it spin to call you actus? I mean, that’s not your real name — just a name you have chosen for yourself.

    Patterico (756436)

  12. Also, one can question how relevant the guy’s name is to the outcome. It’s tougher to question the relevance of facts like his taking up arms against this country in Afghanistan, or his recruitment by and funding from al Qaeda.

    Patterico (756436)

  13. “It’s tougher to question the relevance of facts like his taking up arms against this country in Afghanistan, or his recruitment by and funding from al Qaeda.”

    But the question isn’t relevance. The question is that they are the government’s version.

    actus (9982e6)

  14. “Also, one can question how relevant the guy’s name is to the outcome.”

    Certainly. I mean, why would a blogger like yourself include something so irrelevant?

    actus (9982e6)

  15. I keep trying to understand Actus’ posts, but they never seem to make any sense.

    Dwilkers (a1687a)

  16. I have a solution to all this “spin”, “no spin”, etc. Take Abdullah al Muhajir out of his cell, blindfold him, put him up against a wall, and SHOOT this traitor. Then go get another one,,,

    savet (e83d5f)

  17. “Take Abdullah al Muhajir out of his cell, blindfold him, put him up against a wall, and SHOOT this traitor.”

    Traitor is a useful spin. At least, if we equate it with ‘treason.’ Because that we have a spot for in our criminal justice system.

    actus (9982e6)

  18. Muslim Moniker Double Standards

    Craig Henry:

    Why is it wrong to use Cassius Clay or Lew Alcindor but OK to use Jose Padilla or call Suleyman al-Faris by his old name John Walker Lindh?

    Patrick Frey has similar thoughts.

    Outside The Beltway (5b632d)

  19. #15, me too.

    Bostonian (93bf7e)

  20. Actus, I think the guy’s adopted name might have some marginal relevance to the public’s view on this, and should probably be included in a story about him. But the government might have decided to leave it out of a legal brief, as it’s not *legally* relevant to the issue the court was deciding.

    I keep trying to understand Actus’ posts, but they never seem to make any sense.

    To me either. Especially this:

    But the question isn’t relevance. The question is that they are the government’s version.

    Whether a fact is relevant has nothing to do with whether it should be included in a news article?

    Patterico (756436)

  21. Actus, refresh my memory: which law school are you in the process of flunking out of?

    Xrlq (428dfd)

  22. Xrlq, he is receiving his education here.

    Stu707 (7c4f65)

  23. “Actus, I think the guy’s adopted name might have some marginal relevance to the public’s view on this”

    This is close to my point. There are things which are relevant to the publics view on this. Things which are not really the same as the facts presented by the government in this case and stipulated for the purposes of a summary judgment. And are these things all just ‘spin’? For the purposes of summary judgment, yes. For the purposes of the publics view on this? not quite.

    “Actus, refresh my memory: which law school are you in the process of flunking out of?”

    Some piece of shit i’m not paying any money to.

    actus (9982e6)

  24. Actus, are you drunk? You’re not making much sense.

    Patterico (756436)

  25. Does he ever? He can’t be drunk all the time.

    Xrlq (428dfd)

  26. The fact that José Padilla once called himself Abdullah al Muhajir doesn’t necessarily make it his legal name. Could the government proceed against Mr Padilla under the name Abdullah al Muhajir (or against John Walker Lindh, who once dropped the patronymic Lindh in favor of his mother’s maiden name, as well as Suleyman al-Faris) unless he had changed it legally?

    Dana R. Pico (a9eb8b)

  27. California, at least, is a common law name change state- if you continually go by the name, it becomes your legal name.

    You still need to see a judge to get documents changed, but other than that, you’re good.

    Angry Clam (a7c6b1)


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