The Corner

Padilla Proves the WEAKNESSES of the Civilian Justice System

The Left’s latest effort to attempt to defend the Obama administration’s mishandling of Christmas bomber Umar Farouk Abdulmutallab is the “Bush did it” canard.  Obama apologists are highlighting cases the Bush administration sent to the criminal justice system in order to claim that Obama is simply following Bush precedents.  Therefore, the argument goes, criticism of Obama is just political gotcha.

I deal with this claim in the context of the comparison of Abdulmutallab to “Shoe-bomber” Richard Reid in my column this afternoon.  Bill Burck and Dana Perino also have a very comprehensive post today, discussing Reid and “Dirty Bomber” Jose Padilla.  I don’t want to belabor the points that have already been made.  I do, however, want to address an under-appreciated aspect of the Padilla case.

Padilla is actually the case that best shows the limitations and inadequacies of the civilian justice system as applied to enemy combatants.  This fact is obscured because, as the Left keeps repeating, he was eventually transferred from military custody to the civilian justice system, where he was convicted.

Here’s what they never tell you:  He was not convicted of the most important plot we had against him — the conspiracy with KSM, Binyam Mohammed, and others to carry out a second wave of post-9/11 attacks inside the United States.  He was never indicted on that plot because he could not be convicted applying civilian due process standards.

Padilla refused to give information to the FBI, using its regular protocols.  It was only when he was designated as an enemy combatant and transferred to military custody (no lawyer involved in interrogations, no Miranda, no case to plea bargain) that he began to give up valuable information.  None of those confessions could be admitted under the standards applicable in civilian courts. 

Moreover, we knew a lot of other information about him from the interrogations of other Qaeda detainees, like KSM, by the CIA.  But that information, too, could not be admitted under civilian court rules unless we were willing to give the sources immunity from prosecution.  Since we were never going to immunize the likes of KSM, that was never going to happen.

So how was Padilla prosecuted?  By luck, we had another, unrelated case on him.  It had nothing to do with his plots against the United States.  He was found to be a tangential but complicit member of a conspiracy to support terrorist operations outside the U.S.  He was indicted for that plot and eventually convicted.  But he received a comparatively minor sentence (17 years) rather than the life-sentence he should have and would have gotten if his major activity could have been proved in a civilian court.  Alas, it could not. Thus, he stands to be released from prison in a few years — and, because he is a U.S. citizen, he will be released into our country.

Padilla stands for the proposition that someone can be very dangerous to the American people, we can be in a position to know he is very dangerous based on reliable intelligence, and yet, we can be unable to convict him because of the burdensome due process standards that apply to civilian criminal prosecutions.  Padilla is not proof that the system works.  He is proof that, sometimes, it cannot work — and that we therefore must have other means besides civilian prosecution to detain and interrogate some of the worst terrorists.

Most Popular


‘Epstein Didn’t Kill Himself’

It was just one more segment to fill out the hour, and thereby fill the long 24 hours of Saturday’s cable news on November 2. Or so it seemed. Navy SEAL Mike Ritland was on the Fox News program Watters World to talk to Jesse Watters about trained German shepherds like the one used in the raid that found ... Read More
Film & TV

The Manly Appeal of Ford v Ferrari

There used to be a lot of overlap between what we think of as a Hollywood studio picture (designed to earn money) and an awards movie (designed to fill the trophy case, usually with an accompanying loss of money). Ford v Ferrari is a glorious throwback to the era when big stars did quality movies about actual ... Read More
White House

Impeachment and the Broken Truce

The contradiction at the center of American politics in Anno Domini 2019 is this: The ruling class does not rule. The impeachment dog-and-pony show in Washington this week is not about how Donald Trump has comported himself as president (grotesquely) any more than early convulsions were about refreshed ... Read More
Politics & Policy

ABC Chief Political Analyst: GOP Rep. Stefanik a ‘Perfect Example’ of the Failures of Electing Someone ‘Because They Are a Woman’

Matthew Dowd, chief political analyst for ABC News, suggested that Representative Elise Stefanik (R., N.Y.) was elected due to her gender after taking issue with Stefanik's line of questioning during the first public impeachment hearing on Wednesday. “Elise Stefanik is a perfect example of why just electing ... Read More

What Happened to California Republicans?

From 1967 to 2019, Republicans controlled the California governorship for 31 of 52 years. So why is there currently not a single statewide Republican officeholder? California also has a Democratic governor and Democratic supermajorities in both houses of the state legislature. Only seven of California’s 53 ... Read More