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You are here: Home / Politics / War on Terror / War on Terror aka GSAVE® / He Was American

He Was American

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In a lengthy piece on the future of terrorism prosecutions in the wake of the Padilla verdict, former Judge Michael Mukasey misses/glosses over one minor detail in his discussion of terrorists and unlawful combatants and the Gitmo detainees.

Jose Padilla was and still is an American. Why can’t even exceedingly bright and talented folks like Judge Mukasey wrap their heads around that?

Reader Interactions

52Comments

  1. 1.

    Wilfred

    Maybe it’s because the definition of American has become narrower. Padilla is the wrong color, his name ends in a vowel and he dwelt at the bottom of the socio-economic scale. Then be became a Muslim. His Americanness is no longer visible in the post-9/11 US.

  2. 2.

    Zifnab

    Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.

    *cough* utter bullshit *cough*

    Yeah, I think this is where the Honorable Mike Mukasey takes his cart off the beaten path. Apparently, after 9/11, it became the duty of the US Army to invade its own country.

    Why not just say what you’re really thinking, Mike? America should become a military dictatorship in order to protect itself from terrorism. Blam. There. Done. Now we can all disagree with you and go on our way.

  4. 4.

    Dave

    Well obviously John, if they made mention of the fact that he was an American, it wouldn’t be fit for publication in the journal’s oped.

  5. 5.

    Pb

    And here’s all you need to know about why this guy might be glossing over this obvious fact:

    Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla’s arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.

    They kindly put it right at the bottom, just so you know what the conflict of interest is up front.

  9. 9.

    RSA

    I thought this was a gem:

    Although he reportedly confessed to the dirty bomb plot while in military custody, that statement–made without benefit of legal counsel–could not be used.

    As if this was the result of a Miranda technicality.

  10. 10.

    Zifnab

    Although he reportedly confessed to the dirty bomb plot while in military custody, that statement—made without benefit of legal counsel—could not be used.

    As if this was the result of a Miranda technicality.

    Technically, they forgot to inform him that he wasn’t required to give answers while wearing a shock collar. But if you’re going to let a little slip of bureaucracy hamstring Justice, you’re not better than the terrorists.

  11. 11.

    Jake

    On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

    Why can’t criminal law do this? Because he says so I guess. But if we’re allowed to toss out the rule book for people who have ‘cosmic goals’ then I assume he’d be all right with treating abortion clinic bombers the same way. “Defending Life,” through murder sounds pretty fucking cosmic to me.

  12. 12.

    Ugh

    I haven’t read the piece, but I imagine he just glosses over how we happen to know who are the “people who have cosmic goals that they are intent on achieving by cataclysmic means,” doesn’t he?

  13. 13.

    Mike S

    John, I hope you take a look at this op/ed in today’s LA Times. They nail it.

    Last week, after an investigation spurred by the Military Religious Freedom Foundation, the Pentagon abruptly announced that it would not be delivering “freedom packages” to our soldiers in Iraq, as it had originally intended.

    What were the packages to contain? Not body armor or home-baked cookies. Rather, they held Bibles, proselytizing material in English and Arabic and the apocalyptic computer game “Left Behind: Eternal Forces” (derived from the series of post-Rapture novels), in which “soldiers for Christ” hunt down enemies who look suspiciously like U.N. peacekeepers.

    snip

    American military and political officials must, at the very least, have the foresight not to promote crusade rhetoric in the midst of an already religion-tinged war. Many of our enemies in the Mideast already believe that the world is locked in a contest between Christianity and Islam. Why are our military officials validating this ludicrous claim with their own fiery religious rhetoric?

    Link

  14. 14.

    Dennis-SGMM

    The shorter Judge Mukasey: “My mind is a-glow with whirling transient nodes of thought, careening through a cosmic vapor of invention.”

  15. 15.

    John Cole

    “Long AND lengthy?” Wow!

    LOL. I got interrupted while writing it. I was originally going to call it long and interesting, and then decided it really wasn’t interested, so I switched to lengthy.

    Fixed now.

  16. 16.

    jenniebee

    Does Makursky want to throw out the whole constitution? By my count, in that one piece, he doesn’t like:

    1. Congress’s sole authority to declare war (the bit about the German saboteurs. Being out of uniform losing one Geneva protections only applies during a time of actual war).

    2. Freedom from unlawful search and seizure

    3. Right to a public trial (Osama knew that we knew he was connected to the earlier WTC bombing attempt! Whoopdishit! At the point that his guys are arrested, don’t you think he’d assume that anything they know, including that they’re members of Al’Quaeda, is potentially compromised info? Next we’ll find out that, thanks to the German saboteurs’ closed trials, Hitler never knew that we knew he was Chancellor of Germany!)

    4. The fifth amendment is right out

    5. Right to fair trial (did I sit through Gideon’s Trumpet in high school govt class for nothing? Perish the thought!)

    6. Zomg, any kind of due process at all – he muses that if we make “national security” trials too little like kangaroo courts, that we’ll leave the government no option other than to practice extraordinary rendition “like Clinton did”, or else to just kill suspects on sight. ye. gods. and. little. fishes.

    I can’t take any more of this. Somebody tell me that the ascendancy of these peoples’ ideas is at an end.

  17. 17.

    Dreggas

    Mike S Says:

    John, I hope you take a look at this op/ed in today’s LA Times. They nail it.

    This really shouldn’t be that suprising. Hell in BCT the majority were all extremely religious to the point of being fanatics. Hell it was the chaplain who kept things sane but I remember a drill sergeant dressing down a soldier who had a pagan pentacle on (it is recognized as a religious symbol now) as being some satanist or something in front of everyone.

  19. 19.

    norbizness

    Also interesting that, in that long and lengthy piece entitled “Jose Padilla Makes Bad Law,” the judge actually spent very little time discussing the actual trial, specifically the jettisoning of the dirty bomber charges he swallowed wholesale in the open-ended warrant he’s trying to gloss over.

  20. 20.

    Mike S

    This really shouldn’t be that suprising.

    The fact that they were actually going to send the Left Behind video game and “proselytizing material in English and Arabic” is beyond the pale. Fighting radical fundamentalism with radical fundamentalism of our own is just one more example of the rank incompatence of our current government.

  21. 21.

    RSA

    “Long AND lengthy?” Wow!

    This looks like a lot of spam that finds its way into my mailbox, down to the exclamation at the end.

  22. 22.

    Jake

    I imagine he just glosses over how we happen to know who are the “people who have cosmic goals that they are intent on achieving by cataclysmic means,” doesn’t he?

    He glosses over a lot of shit. (Behold the power of the passive voice!) I hope his decisions weren’t so sloppy but I guess he didn’t have a clerk to help him with this one.

    For example:

    … notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.

    In any event,

    So, some guy named Klaus claiming he’s an American during a war with another nation is sort of the same as the guy who is known to be an American when we’re at war with people with “cosmic goals.” Further he puts another bullet in his foot by selecting this example. He kind of wants to say American citizenship doesn’t necessarily get you Constitutional rights but the SC never fully addressed the issue (they thought the defendant was lying maybe?) Oh well, can’t talk about that, time to stick in an In any event. Sheesh.

    And this:

    Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them.

    Please let me know if this makes any sense to you. Who will do the hypothetical killing? Soldiers in combat? Uh, yeah. That happens. Some JAG who doesn’t want to be bothered? That would be what we call wrong. He seems to be arguing that if we can’t mistreat suspected cosmic warriors … something bad might happen to the suspected cosmic warriors.

    Uh. Yeah.

  23. 23.

    John Cole

    So, some guy named Klaus claiming he’s an American during a war with another nation is sort of the same as the guy who is known to be an American when we’re at war with people with “cosmic goals.”

    Yeah. I love how actually being a verified American is no different from a vague claim of American citizenship.

    I think all of the talk about this case needs to focus on one simple fact- he was American, and should have been afforded Constitutional protections. Period. I don’t care if this is the greatestest war for civilization ever or the mostest important case ever, that is why the Constitution exists. To protect the outliers. Not the mundane, routine shit.

    It is the same way with speech- we protect Nazi’s because of the principle, not the situation.

  24. 24.

    akaoni

    And just in case you doubted the judge’s partisan credentials comes this nice little passage:

    Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation–a practice, known as rendition, followed during the Clinton administration.

    Thank goodness the Bush administration has had nothing to do with this horrific policy!

  25. 25.

    ConservativelyLiberal

    Shorter Judge Mukasey:

    ‘I am writing this to justify my despicably ignorant actions in this distorted case. History must see me as being right, no matter how wrong I really was.’

    End of story…

  26. 26.

    Zifnab

    It is the same way with speech- we protect Nazi’s because of the principle we are also Nazis, not the situation.

    Yeah, why don’t you take your Constitution back to 1944 Berlin where it came from?

  27. 27.

    ConservativelyLiberal

    Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation—a practice, known as rendition, which has been used extensively by the administration that followed during the Clinton administration.

    Fixed. Corrected.

  28. 28.

    Steve

    John has correctly seized upon the glaring omission in this piece. Ex Parte Quirin, the case of the German saboteurs during WWII, was described by none other than Justice Scalia as “not this Court’s finest hour.” You can’t dismiss the issue of Padilla’s citizenship with nothing but a citation to that single wartime case.

    But in the big picture, Judge Mukasey is right. There are some serious issues regarding trying terrorist suspects in court – including the disclosure of classified information – and unless we devise a framework that can address those issues, we’re going to keep on seeing more abuses like the Padilla case. If I were the President, I’d try to put together a panel of people with experience in terrorism prosecutions – from both the prosecution and defense side, as well as retired judges like Judge Mukasey – to find the solution. We can pass whatever laws we need to for the protection of our nation, but at the end of the day, we need to be able to abide by the rule of law. These ad hoc detentions aren’t the answer.

  29. 29.

    Pb

    You can’t dismiss the issue of Padilla’s citizenship with nothing but a citation to that single wartime case.

    Agreed; therefore:

    If I were the President, I’d try to put together a panel of people with experience in terrorism prosecutions – from both the prosecution and defense side, as well as retired judges like Judge Mukasey

    Fixed.

  30. 30.

    dmbeaster

    But in the big picture, Judge Mukasey is right.

    His big picture was that because Padilla was a suspected terrorist, he should be denied normal Constitutional protections and due process rights. How is that “right”?

  31. 31.

    Jake

    If I were the President, I’d try to put together a panel of people with experience in terrorism prosecutions.

    Why do they need/warrant the expense of putting in a separate system when we have a couple that have worked for years? These guys aren’t worth the hassle and the amount of crapping on well established, national and international law this requires. “He’s an enemy geo-amorphous combatant type fightery dude.” Please.

    I’m sick of seeing this country produce propoganda/amusement for bin Laden and his minions. Wouldn’t it be a kick in the nuts to them if we processed suspected terrorists, threw the guilty ones in jail and let the ones found not guilty go?

  32. 32.

    Steve

    His big picture was that because Padilla was a suspected terrorist, he should be denied normal Constitutional protections and due process rights. How is that “right”?

    No, the big picture is how we prosecute terrorist suspects in general, not how we handled this one guy.

    Fixed.

    Judge Mukasey was the chief judge of the most prominent federal district court in the country. I practice in his jurisdiction, he’s well-respected for a reason. I know it’s a fun Internet game and all to dismiss someone as an idiot because they made one point you don’t agree with, but aside from his too-glib dismissal of the issue of Padilla’s citizenship, I still think he’s a guy who knows a lot about this area of law and it would be a mistake to write him off.

    Why do they need/warrant the expense of putting in a separate system when we have a couple that have worked for years?

    I thought the examples he provided of 90’s-era terrorism prosecutions where we inadvertently revealed information to al-Qaeda were pretty compelling, actually. Agree or disagree, that’s the reason the people who run our justice system are spooked about going down that road in the future. Either we find a system everyone can live with, or they’ll go on abusing people with procedures like indefinite detention and we can go on complaining about it.

  33. 33.

    Jake

    I thought the examples he provided of 90’s-era terrorism prosecutions where we inadvertently revealed information to al-Qaeda were pretty compelling, actually.

    Someone already made the point that where a group of criminals are acting in concert, when one of their group gets caught, the rest of the group assumes the guy has started singing to get out of trouble. Assuming the group has two brain cells to rub together.

    But again, I’m not convinced that especially where American citizens are concerned, we need a third method of prosecuting people because they are accused of being terrorists.

    The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial.

    What sort of evidence would that be Your Honor? He doesn’t say. But I note he’s clinging to the idea that the dirty bomb plot was for realz and it was just the silly law that required that charge to be dropped.

    Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering.

    Like how he was treated perhaps? Again, that’s left to our imagination.

    Or perhaps it was because Padilla’s apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.

    Here’s a radical idea! Pick one (defendant or information source) and treat him accordingly. If you think he’s a criminal, try him. If you think he can help you find other crimnals, put him in a fucking safe house and be nice. Shit, is this guy honestly suggesting that if you get picked up for a crime and the authorities think you might be able to help them find other criminals they can hang on to your ass for as long as they like?

    Verily, the War on Terror is the War on Drugs on steroids.

  34. 34.

    JWW

    This is one article of hundreds or thousands, seems it was chosen for need. With our without, why does it make a difference? If plots against our country are discovered by those within, and especially by citizens, can’t we equate that with treason. In or at a time of war, the rules do change. You seem too think this is the every day protocal for the justice system. Give your country the ability to support and defend itself.

  35. 35.

    Dreggas

    JWW Says:

    This is one article of hundreds or thousands, seems it was chosen for need. With our without, why does it make a difference? If plots against our country are discovered by those within, and especially by citizens, can’t we equate that with treason. In or at a time of war, the rules do change. You seem too think this is the every day protocal for the justice system. Give your country the ability to support and defend itself.

    Hmmm considering we are not in a formal state of war (this is another fiction created by the MSM at the behest of the admin and part of the rights fevered delusions) treason would be the least likely charge. Conspiracy to commit mass murder perhaps. However under your stependously twisted view of the current state of this nation even associating with a muslim in this country who came here from the M.E. would be grounds for charges of treason.

    Of course I know cold hard logic makes men on the right lose their woodies but sorry, that’s the cold hard fact.

  36. 36.

    John Cole

    Judge Mukasey was the chief judge of the most prominent federal district court in the country. I practice in his jurisdiction, he’s well-respected for a reason. I know it’s a fun Internet game and all to dismiss someone as an idiot because they made one point you don’t agree with, but aside from his too-glib dismissal of the issue of Padilla’s citizenship, I still think he’s a guy who knows a lot about this area of law and it would be a mistake to write him off.

    I hope I didn’t give that impression. I will leave the attacks on the judiciary to the wingnuts at the Powerline and Tom DeLay.

  37. 37.

    rawshark

    Hmmm considering we are not in a formal state of war (this is another fiction created by the MSM at the behest of the admin and part of the rights fevered delusions) treason would be the least likely charge.

    Muslims are attacking a Christian country. How is that not war?

  38. 38.

    JWW

    However you may want to pervert it, we are a nation at war. If you need a declaration, you are small minded. The nation has declared war against terrorist. Being a stickler for the law as you seem to be, do you walk in the parts of your own city that you seem unfit or dangerous. Would you like those persons that pose a threat to your town removed. You haven’t the mind too go beyond your own community problems let alone national problems!

  39. 39.

    JWW

    I may have stepped outside my boundry. I did not mean, or speculate that I was intruding on legal boundries. I should be shamed and sent away. I truely have mistaken this site. I just now established that. Should I decide, I will only intercede when the “Law” is in question. I had always thought, and now I know, why you think I am !!!!! whatever you think I am. You can not read a persons thoughts, you can not see right or wrong, you only read, see, and follow where the next case and dollars lead you. That was not derogatory, only that you seek a living at what you do. Some seek that living at the cost of the victim, town, city or nation.

  40. 40.

    Pb

    aside from his too-glib dismissal of the issue of Padilla’s citizenship

    And therefore, by extension, his too-glib dismissal of the issue of an American citizen’s basic Constitutional rights, not just in a conservative op-ed piece, but in a court of law. No thanks, Steve. He wouldn’t get my vote for dog catcher, because even dogs deserve better treatment than what Padilla ended up getting with him presiding.

  41. 41.

    JWW

    And to Dragg/ass,

    Any citizen who attempts such, is both guilty of being a traitor and of treason. You may want to mince words, but definitions, are what they are, “definitions”.

  43. 43.

    JWW

    Is just me,”yeah”

    Doesn’t the nation and its lawful citizens, deserve the right, and demand that local, state, and federal government, use applicable discretion in all legal and central matters. When it becomes a matter of the nation as a whole, they are given the right to declare war, or enter a conflict. Should we just give any given enemy to the nation a look see and pass them on. No, we need to look as hard at the enemy within as we do those in the theater of operations. When they become an enemy of the people, they recind those rights.

  46. 46.

    JWW

    Jake,

    I mentioned the word”bottom feeder” here before. Seems that I was severly scolded.

    Your words
    Verily, the War on Terror is the War on Drugs on steroids

    If that is your thought process, you need too migrate. You are lost, never would give a hair off your ass too save your family.

    Sorry you are and always will be, “when the door opens late at night” you would be in the basement, under the stairs.

  47. 47.

    JWW

    Jake,

    Birdzilla, is that the nickname for your o’lady, kinda like Lassy from Porky’s. Only your o’lady screeches. Hell I don’t know, I don’t chase ????, well, you know.

  48. 48.

    dmbeaster

    It is fair to say that given a chance to vote in Korematsu II, Judge Markasey would be inclined to uphold the internment. And his opinion would “overlook” that pesky side issue of citizenship and constitutional rights.

    So it is not a mistake to write him off (unless like Malkin, you are a fan of internment) — not when his carefully written op-ed piece is so wide of the mark. Yes, there is an interesting legal issue about how to deal with foreign terrorists seized overseas. But the article was “Jose Padilla Makes Bad Law,” and it is not a slip to ignore the fundamental question in that case — it is a deliberate decision to ignore the Constitution in favor of expediency.

  49. 49.

    jake

    I mentioned the word”bottom feeder” here before. Seems that I was severly scolded.

    Oh sorry. In case anyone’s wondering … um. How can I say this without offending those of a more vanilla constitution?

    If JWW calls you a bottom feeder, he means it affectionately. Really affectionately.

    I’ll spare you any further details.

  50. 50.

    ConservativelyLiberal

    JWW Says:

    Baaaaa

    Seems that is all I can see, over and over again. Hmmm…

    Maybe one day they will say something of value that will get through. One can always hope.

  52. 52.

    TenguPhule

    but aside from his too-glib dismissal of the issue of Padilla’s citizenship, I still think he’s a guy who knows a lot about this area of law and it would be a mistake to write him off.

    Translation: So aside from pissing on the Constitution, he’s a great guy I’d like to have a beer with.

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