The Padilla Follies

I totally forgot that prosecutors start presenting evidence today in the Jose Padilla case down in Miami. The LA Times breaks it down for us. I had a couple of thoughts. First, let's just keep in mind how long this guy's been in custody. He was picked up in 2002 at O'Hare airport, juggled between Justice and then the military, stuck in a brig as an "enemy combatant," the same status as the indefinite detainees down in Gitmo, and then he's handed off again to Justice for criminal prosecution in federal court. Moreover, the megillah of charges against the guy make no mention of the sensational "dirty bomb" claim made by Ashcroft in that weird (really weird) video conference from Moscow. Undoubtedly, some folks are going to point to the Padilla trial as the reason why you don't want these cases going through the federal court system. Consider: the Times points out that the prosecution has been warned not to open the door to the dirty bomb stuff, lest the defense get to inquire into the "classified and controversial" interrogation tactics used against the defendant (there are actually three defendants, Padilla being the most notable). This is, um, troubling. Of all the issues swirling around in the dirty snowglobe, this is the most bothersome to me personally. As much as I like the big HC, the possibility of evidence gained through torture being admitted in a criminal prosecution is too far down the rabbit hole for America to remain America. Information gained through torture is tortured information. It's unreliable, possibly dangerous, and if we allow it now, it's going to become de rigueur in a few short years. Worse than all that, however, is that the defense can't even introduce this stuff unless the prosecution steps over the line in attempting to tie Padilla to the dirty bomb conspiracy (he's being charged with involvement in a separate conspiracy). It seems silly because the one thing that prosecutors can't introduce is the ostensible reason the government gave us for detaining the guy in the first place. Okay, I'm getting shrill. Breathe, Gabe, Breathe. Here's the bottom line: it's great that they put Padilla into the criminal justice system, and if he's guilty, I hope he goes away for a very long time. But, this whole affair has been a snafu (can I say that on findhabeas.com?) from word one. And, it's also what's going to happen when the Gitmo detainees get their day in court. But, you know what? That has to happen, even if it is inconvenient or messy (as it is in the Padilla case). It has to happen because this administration's detention policies have completely failed. We're in the incarceratory equivalent of Colin Powell's Pottery Barn quip: the Bush administration broke it by setting up the 9/11 detention system in the first place, and now they gotta buy it. We may not be able to fix the mistakes of the past, but, going forward, we can and should charge or release all the detainees still held on that tiny plot of America down in Cuba. Incidentally, you like the snowglobe reference? Sylar is a scary fellow.