I’m on record as being in favor of full up criminal trials for all the alleged terrorists, rather than just for American citizens. But in a discussion such as this, it’s probably important to make a distinction between the two. But throughout this article, Judge Mukasey conflates the status of the American citizen Jose Padilla, with that of the rest of the detainees who are facing trial (assumedly by Military Commission). In fact, he barely mentions it.
The title of his piece is “Jose Padilla Makes Bad Law.” And it’s an axiom that, in our system of common law where a judge’s precedent can bind future judges on the same or similar facts, that “bad facts make bad law.” Therefore, it’s kind of ironic that the only mention of the fact that Jose Padilla is an American citizen is found in this brief section:
The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and–except for two who had cooperated–executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.
This seems to me to be a perfect example of the axiom at work. To say that this 1942 Supreme Court case somehow is the standard that we should use for all terrorism-related decisions for American citizens truly is “bad facts make bad law.”
And even if you can draw a parallel between the Commissions from 1942 to the present day Commissions and argue that the American citizen, Padilla, could/should be dealt with under that system, that doesn’t justify his nearly 4 years of isolation, being kept from access to an attorney and the use of “enhanced interrogation techniques” on him.
It also bears pointing out that Judge Mukasey might have a bit of an interest in the outcome of this case. He was after all:
…the district judge who signed the material witness warrant authorizing Jose Padilla’s arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.