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January 22, 2008

Any Padilla sentencing predictions?... UPDATE: 17+ years'

As detailed in this AP story, Jose Padilla may finally get sentenced today in federal court.  Here are the basics:

The accusations that he plotted to set off a radioactive "dirty bomb" are long gone, but Jose Padilla was still convicted last summer of conspiring to support Islamic extremists around the world.  Now a federal judge who sat through a three-month trial and seven-day sentencing hearing was set to decide Tuesday the fate of the 37-year-old U.S. citizen and two co-defendants.  U.S. District Judge Marcia Cooke, appointed by President Bush, has wide discretion in determining how much time the three men will spend behind bars.

And this effective article from the Christian Science Monitor places the Padilla sentencing in a broader context.  Here is how this piece starts:

Prosecutors in Miami are asking a federal judge to endorse a broad reading of a murder conspiracy statute and material support law to send convicted Al Qaeda recruit Jose Padilla to prison for the rest of his life.   If US District Judge Marcia Cooke agrees with the US Justice Department, the severe sentence won't be for any violent act carried out or planned by Mr. Padilla.  Instead, he will be punished for what prosecutors say were his dangerous intentions — intentions to conduct unspecified future terrorist operations.

The case raises a potential landmark legal question.  Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?

UPDATE:  As detailed in this AP story, Jose Padilla "was sentenced Tuesday to 17 years and four months on terrorism conspiracy charges."  The article indicates that Judge Cooke "said she was giving Padilla some credit — over the objections of federal prosecutors — for his lengthy military detention at a Navy brig in South Carolina":

She agreed with defense lawyers that Padilla was subjected to "harsh conditions" and "extreme environmental stresses" while there. "I do find that the conditions were so harsh for Mr. Padilla ... they warrant consideration in the sentencing in this case," the judge said.

David Oscar Markus here has this astute comment: "It will be interesting to see whether the government appeals the sentences after Gall and Kimbrough, the recent Supreme Court cases which give district courts very wide latitude in sentencing."

January 22, 2008 at 07:23 AM | Permalink


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Tom Cruise has got to love this idea of punishing intentions -- I bet Minority Report will start disappearing off shelves everywhere.

Posted by: JustClerk | Jan 22, 2008 8:07:50 AM

For the life of me, I don't think that any of this is that interesting. Inchoate crimes and conspiracies are already punished under our current law. For constitutional and common law reasons there must be some kind "substantial step" or "overt act." Showings of intent must be made as it stands.

Sure, the government has said some goofy things about hwo preventative detention would prevent people that might harm others in the future. But, they don't actually explain that what they wanted to acheive was a lowering of the burden of proof, not a difference in the elements that must be shown. However, since these statements were made for the simple ears of non-lawyers, they were not under any obligation to explain what they were talking about.

Now, of course, if one is going to argue that "no law" applies and the government can do anything it wants, that is different. But, the government has never made that argument in any legal context. (But, it is fun to leak to the media.)

Posted by: S.cotus | Jan 22, 2008 10:22:26 AM

Will he at least get time served? I hope after he gets out he renounces his citizenship to this hypocritical country!

Posted by: cherish | Jan 22, 2008 12:40:30 PM

17 years... of course, now we have the STA trial issues...

"Will he at least get time served?"

I don't have the exact wording of the order, but CNN (which is not staffed by lawyers) seems to indicate that there was some sort of Booker departure... but it might have been under the Guidelines.

Posted by: S.cotus | Jan 22, 2008 12:45:23 PM

This just points up the lunacy of using the criminal law as the sole instrument in dealing with terrorists. If the government is right, Padilla came here to make war on the US. Letting a traitor such as he out of incarceration is flat-out nuts. Maybe he'll learn his lesson; maybe he won't, but it's not a risk that we should take now.

One really interesting question, kind of an acid test for those who believe that Padilla was an "enemy combatant", is whether Padilla simply could have been shot as he was walking off the plane. It's not really a simple question. In war, the enemy can be engaged even if he is unarmed, not expecting combat etc., and there is no rule that an "enemy combatant" be given the opportunity to surrender either. Moreover, there is no rule which allows enemy combatants to self-declare a combat-free zone, so worldwide, an enemy combatant can be engaged. Food for thought.

Posted by: federalist | Jan 22, 2008 1:00:23 PM

Federalist, I am with you insofar as I think that juries are stupid. As you know, many of the people on juries have less education than myself and are therefore at war with the US. They will likely feel sympathy for similar enemies of my country.

Likewise, I agree with you. If there is a risk that people won’t “learn a lesson” and continue to harm the US, they should be executed. I am sure that you agree that there is no reason to keep them alive. As a practical matter, there is a high degree of recidivism among 1) drunk drivers; 2) fraudsters; and 3) drug users. Therefore, these people should be executed on site. However, I require two conditions: 1) the execution be performed by a democratically-elected executioner; and 2) such executioner have a degree of education equal to or greater than the education of myself. Obviously, people with educations or incomes greater than my own would not be subject to execution, but that goes without saying.

As a legal matter, you are mistaken regarding the extension of the “theater of war” into O’Hare Airport. First of all, the government has disagrees with you, and I am somewhat distressed by your rejection of the government’s position. We are at war here. Consider this exchange at oral argument in Padilla v. Rumsfled:

QUESTION: Would you shoot him when he got 12 off the plane?
MR. CLEMENT: No, I don't think we could 14 for good and sufficient reasons --

The government’s position (which you reject) is simply that you can’t shoot unarmed people. In fact, the government maintains that after someone is “brought to safety” they cannot be summarily shot... “Even if they are an unlawful belligerent .” (Again, this is the Bush administration’s position, on p. 21 of the Padilla v. Rumsfeld Oral Arugment).

The Bush administration has never taken the position that an even an illegal combatant should not be given a chance to surrender. Moreover, since there is a presumption that everyone found in a field of battle is covered by the Geneva Conventions (which could be rebutted under GC3, Art. V), it is strange that you disagree with the Bush administration in this way. Again, we are at war, and I think that you should probably show a little more deference to the positions of the Bush administration.

Anyway, I am sure that you will agree that most horrible enemy of the US is the lower classes. They have no dignity to offend.

Posted by: S.cotus | Jan 22, 2008 1:31:31 PM

With all due respect to Mr. Clement, S.cotus, he is wrong. A sniper could certainly pick off unarmed soldiers in an enemy camp. There is a status of "hors de combat", which means you can't shoot at a pilot in a parachute or in certain other circumstances. But I don't think that applies to ememy combatants here in America hiding. Let's say the Germans coming off the U-Boat were unarmed, does anyone think that a beach guard could not have shot them? Perhaps, Clement's view is that Padilla was sufficiently in control so that he was effectively "hors de combat", but that seems a little cute.

Posted by: federalist | Jan 22, 2008 2:08:01 PM

“With all due respect to Mr. Clement, S.cotus, he is wrong”

This is a very disturbing allegation that you are making. You are claiming that the legal representative of the Bush administration -- with the title GENERAL, no less -- is wrong. You have given him absolutely NONE of the respect that he is due.

How can you live with yourself after such an unAmerican statement?

The rest of your comment fails to provide citations, and is virtually impossible to understand. From what I gather, we can shoot lots of people anywhere, any time, regardless of the law, under the legal fiction that the entire universe (even Antarctica, Mars, and a shopping mall) are zone of active combat in a foreign theater of conflict.

Finally, (and this is more intended to the rest of the audience) the argument that “because at some point, anything could be done to Padilla, the laws don’t apply) seems to jump over a number of logical problems. The fact is, many people in war are simply *not* killed. Instead, they are captured and international or domestic law applies to them. As far as I can tell, the contrary argument is that we ONCE could have killed someone, some government bureaucrat can torture and kill them in any way with no limits or supervision.

Posted by: S.cotus | Jan 22, 2008 2:53:18 PM

Give me a break S.cotus. If the enemy carries the fight to the American homeland, a military response is lawful. Do you dispute my hypo with respect to the Germans?

Posted by: federalist | Jan 22, 2008 3:15:33 PM

federalist: I, like any right thinking American, would love to see S.cotus abducted by Austrian nihilists and cooked in garlic butter (over a slow flame). But WANTING that to happen, and even going as far as signing up for a Nihilist Cooking Seminar, doesn't make me guilty of anything other than having a dearth of hobbies (as if posting comments to a sentencing blog wasn't indication enough).

Nearly six years after replacing Johnny "Taliban Jack" Walker as THE BIG THREAT (eeek!), the Padilla "case" crumbled into complete nothingness and turned out to be an indictment of incompetent Government more than anything else. So, if you want to cower in your parlor under the couch for fear that local car thieves and stick-up men are filling out Al Qaeda Montessori applications (in crayon), buying overpriced surplus boots, and are going to trigger thermonuclear mayhem, be my guest -- but don't be surprised when a lot of people shake their heads in disbelief and pity.

On the bright side, the same 1/4 of the population that think Jesus rode dinosaurs and that George Bush is looking out for them are in lockstep with you on the efficacy of this conviction and sentence in spreading freedom and justice. Or is it freedom and democracy? Or democracy and tax cuts? I can never remember.

Posted by: dweedle | Jan 22, 2008 3:31:32 PM

Dweedle. I am a vegetarian. We taste better.

The German sabateur case was 1) under different law (since it happened before the GCs); and 2) I am not exactly familar with whether they were armed or not and exactly the circumstances under which they were captured.

Also, Padilla's status as an American does change the issue a bit.

Posted by: S.cotus | Jan 22, 2008 3:48:05 PM

S.cotus: So he happens to have been born in the USA, big whoop. President Bush could cede away Brooklyn (where Padilla was born) to Iceland and, presto-chango, no more liberal whinin'!

Just think how we could expedite the criminal justice system if we sent everyone who disrespects the "homeland" to have the custard beat out of them by rubber-suit wearing pervs at a Navy base?

I betcha a flouncing commie like you would admit lickety-split to plotting to kill everyone in Wichita with a "dirty bomb" constructed from the remains of a '62 Rambler and spare ceiling fan parts -- even before Seaman Butkis got out the tube sock filled with nickels.

Terrorism problem solved — all through the magic of, whatchacalit {consults Gonzales memo}, "effective techniques."

If we can then avoid a trial, with all that pesky "evidence" and annoying "facts", then we'd not have travesties like what happened here -- we'd get 100% summary executions.

Posted by: dweedle | Jan 22, 2008 4:49:17 PM

I agree with you except that the president doesn't have the power to cede states to Iceland. He might have the power to cede Puerto Rico... however.

Posted by: S.cotus | Jan 22, 2008 5:29:21 PM

the gov't will appeal and the 17 year sentence will be reversed as unreasonable, with orders to give at least 30 years, and something closer to life. Not that I disagree with the sentence, I'm just predicting what will happen.

Posted by: bruce | Jan 23, 2008 9:19:21 AM

It isn't that simple, Bruce.

First of all, the "orders to give" a sentence might be somewhat more rare in light of G and K.

Second of all, Padilla probably WILL appeal, esp. in light of the langauge in the denial of the cert. grant, stating that the STA should provide him with a remedy.

Third of all, the LOWER his sentence, the BETTER the government's position is for be able to evade review on the underlying issues of "let the president randomly select people to detain and torture without trial without any review" thereby making the government's position in other cases better. Heck, I bet at least a few people in the government were hoping that he got nothing BUT time served.

Fourth, the last thing the 11th wants is to be GVRed on this in light of cases that already came out, so I seriously doubt that they are going to order that he be sentenced ABOVE the guidelines.

Posted by: S.cotus | Jan 23, 2008 10:59:29 AM

Months ago, reading the record of torture inflicted on Padilla (taken into account by the Judge in her sentencing decision) I found myself literally nauseated, close to retching. As a citizen and lawyer, it was an extraordinarily shameful moment -- the public destruction of America’s reputation as a nation subject to the rule of law. The Padilla case will forever be recognized as America's Dreyfus case. The first action of the Democratic President in January, 2009, must be to pardon Padilla and all others tortured by the United States. “Pardon Padilla” must be our national oath during the remaining eleven months of tyranny.

Posted by: Anonymous Citizen | Jan 24, 2008 10:29:20 AM

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