Padilla: Another WTF? Moment

I really can't believe the verdict in the Jose Padilla case. It's simply incredible. I have to agree with Andrew Cohen's conclusions in WaPo:

For this jury, the simplest explanation was that these guys were up to no good. They were acting suspiciously (or at least not innocently). They were talking like spies (or at least not like relief workers). Teenagers are expected talk and text in code so that their parents don't know what they are up to. Makeshift humanitarians are not.

None of this in my view necessarily justifies today's verdicts -- but it certainly in my mind helps explain them.

For the government, it's a verdict that brings a huge sigh of relief. Now the feds don't have to worry about what to do with Padilla, the once-upon-a-time "dirty bomber." Now they can declare victory even though the people who have followed this case closely know that Padilla ultimately was convicted on evidence that federal authorities did not believe amounted to a crime when it was gathered back before 2001. Now the folks at the Justice Department can claim we are safer from terrorism even though the constitutional mess left over from the initial Padilla affair -- his designation as an enemy combatant -- could hamper terror law efforts for years to come.

Anderw Sullivan, on the other hand, can't quite keep from coming down on both sides of the issue:

I am prepared to believe that the jury made the right call. But the path to that call remains indefensible. A reader put it best:

Leaving aside the torture issue (which is a big aside) I am not that concerned that Guantanamo exists. Our military is capturing people on battlefields and they need to be placed somewhere. I do think there needs to be a better procedure to determine whether those people are POWs or illegal combatants, but I do not want the military in Afghanistan, Iraq, and elsewhere to be fighting a police action.

But the Padilla case was different. Here was a guy arrested by law enforcement inside the US (though, as he was at an airport, arguably legally outside the country). He was not captured on a distant battlefield holding a rifle or even in the process of engaging in a terrorist act. The fact it took the government three years to try him, and everything that happened in between is a travesty.

I am not prepared to believe that the jury made the right call, onsidering that the government had no case. I've served on a jury, and we came up with a verdict that dumfounded the judge and both attorneys, finding for the defendant. It was simply that the plaintiff had no case, and we could see that quite plainly. Of course, this was in Chicago -- we tend to have a rather jaundiced view of lawyers and the government here.

Without having been there, of course, I can't address specifics, but it would seem to me that the government was handed a freebie on this one.

(Sidebar: In spite of the centrality of the torture/detention issue to the Padilla case in large, I realize that in the specifics brought into court in the actual trial, there is a different order of scrutiny. In spite of that, I think we cannot forget those larger issues, so I'm pulling in two posts from Balkinization, first, this commentary by Jack Balkin, second, a comment on that post by Marty Lederman.)