Whenever "conspiracy" is enough, there's a profound ruleset gap
Tuesday, August 21, 2007 at 11:18AM ARTICLE: "A New Model of Terror: Tools for Prosecution Seen in Padilla Case," by Adam Liptak, New York Times, 18 August 2007, p. A1.
The key excerpt:
But the sharp split between military detention and criminal prosecution starts to blur as conspiracy charges are added to the mix.
That is because conspiracies aim at the future. A successful conspiracy prosecution looks both backward, to punish the crime of conspiring, and forward, to stop dangerous people from completing their plans. The weaker the evidence of conspiracy is, the more such a prosecution can look like a request for judicially sanctioned preventive detentions.
Padilla's evidence? He applied to go to a terrorist training camp run by al-Qaida.
You can see the danger, but also the need here.
There was a time when being merely a member of the American Communist Party was enough to get you blacklisted. The justification of intent mixed with the guilt by association was murkier than applying to an al-Qaida camp, but you spot the dangers of slippery-slopes--yes?
Still, just because al-Qaida is not a nation state doesn't mean we blow off either its declarations or acts of war, so giving aid or simply joining that enemy is cause enough for America's response.
But intent to join? That's clearly trickier, suggesting we need a revamped rule set regarding where the lines can be said to be logically crossed. Say my kid fills out such a form as a lark or joke or form of rebellion but does nothing else. Is that enough to brand him a terrorist?
Tricky ruleset indeed.
Say I just accuse you of intending to apply. Is that much better than screaming, "She's a witch!"? Where do you draw the line?
Reader Comments (4)
Depends I suppose if you are simply accusing me out of the blue or whether I'm also standing there with my broom, black cat, pointy hat and pentagram, chanting invocations to the Dark One.
In other words, context matters and there's context to Padilla's case that makes his al Qaida application more than a childish lark. His case was botched by Bush administration incompetence/resistance to following the clearest available precedent, Ex Parte Quirin but that doesn't mean Padilla merits a get out of jail free card either.
If he was convicted by a jury in a civilian criminal court with it's higher evidentiary standards and burden of proof then Padilla didn't have a hope in hell of beating the rap in a regular court-martial, much less under a special military commission as was used in the Ex Parte Quirin case.
Moreover, to extend as well as belabor the point, in our legal system as well as under international law, certain organizations have been deemed so dangerous and inherently conspiratorial as to require alternative procedures in which mere *membership* is sufficient cause for extraordinairy action.
The RICO statute developed to tackle La Cosa Nostra changes many of the rules of the game and the judicial systems of nations like Italy and Peru have imposed harsher procedures against criminal and terrorist organizations that have assassinated prosecutors and jugdes. The Nazi Party, SS, Gestapo and subsidiary Nazi formations were declared to be criminal organizations at Nuremburg, whose members were subject to trial. Not just the Nazi bigwigs, tens of thousands of small fry went through West German De-Nazification trials in the 1940's -1960's as well as trials in countries formerly occupied by the Third Reich. And deservedly so.
Liberal Democracies are robust enough to preserve the values that make them what they are without having to shirk from vigorously prosecuting and punishing those who would destroy them. The latter action is not a contradiction of liberal values but rather their affirmation.
Michael, are you speaking of Padilla's actual trial or his entire experience in U.S. custody?
Accused Nazi war criminals were held in POW camps or special detention for years and were subject to both normal interrogation as well as repeated psychological examination ( read The Nuremburg Interviews by Dr. Leon Goldensohn). Some were held as long as a decade in military custody, both by the Soviets as well as the United States ( some sued for their freedom, the Eisentrager v. Johnson SCOTUS decision went against them).
RICO trials against New York's Five Families mafia, the Chicago Outfit and various corrupt union leaders and politicians - of which they were many over a period of years - show some variance in terms of restrictions placed upon the defense or lattitude given to prosecutors. Personally, I'd rather get the trial Padilla did than be tried under the RICO statute; secondly, if I was innocent, I'd rather get a normal military trial but if I was guilty I'd infinitely prefer a civilian one.