Comments on: Padilla’s detention upheld

By: AppealMan

AppealMan — Sat, 10 Sep 2005 14:47:00 +0000

The district court granted summary judgment as a matter of law, based on the “facts” as presented by the Government, which Padilla accepted as true only for purposes of testing the legality of his detention without charge even on the facts as alleged by the Government. Now, given the reversal of that decision, the facts justifying the detention can be tested in the district court after discovery and an evidentiary hearing — although there could be a battle over Padilla’s right to see documents or question witnesses.

By: petelush

petelush — Sat, 10 Sep 2005 14:06:35 +0000

“J.A.” means joint appendix, i.e., excerpts from the record jointly submitted by the parties.

By: John

John — Fri, 09 Sep 2005 22:43:57 +0000

In the opinion there are statements about facts with the such citations as J.A. 18-19.

What is J.A.? Have the “facts” been presented in court and subject to examination by the defense? I know that for purposes of the summary judgment motion the facts have been stipulated, but does this stipulation apply for any other purpose?

By: HowardGilbert

HowardGilbert — Fri, 09 Sep 2005 15:11:54 +0000

This decision has nothing to do with “President Bush’s power to order the detention of suspected terrorists”. Padilla is being held as a Prisoner of War because the government regards him as an enemy soldier. Although the decision of the 4th Circuit mentions the claim that he was captured on a terrorist mission to blow up apartment buildings, the legal reasoning mostly ignores the mission he was on when captured and relies instead on his prior status as an infantry soldier in Afghanistan. It holds that the government has a right to detain him in order to prevent his return to the battlefield.

The posting makes the same error in characterizing the Quirin decision. It characterizes those facts as “the arrest and prosecution of a U.S. citizen who was a Nazi and thus an ‘unlawful enemy belligerent’”. Herbert Haupt was more than a Nazi. He travelled to Germany and enlisted in the German army. He was selected for a special operation, crossed the Atlantic in a U-Boat, paddled ashore wearing his German army uniform, then buired his uniform and ID card and proceeded to Chicago dressed as a civilian. The Quirin decision approved his capture as a POW because he was an enemy soldier, not just a Nazi.

Curiously, another Supreme Court case arose from the same incident that dealt with “the arrest and prosecution of a U.S. citizen who was a Nazi”. This was Haupt’s father Hans. He was arrested by the FBI along with his son. However, Hans had never left the US and was not a German soldier. So while his son was treated as a POW, Hans was tried in the civilian courts and convicted of the not exactly ordinary criminal charge of Treason. In his case the Supreme Court ruled that the constitutional rule requiring the testimony of two witnesses for conviction did not establish a rule of evidence requring two witnesses to every fact submitted to the court.