Classmate-Wearing-Yarmulka gets a job and passes the bar exam


Tuesday, November 22, 2005

Padilla Indicted

So the government decided to indict Padilla after all.  I’m not sure if this is a smart move or not.  I’m guessing that they now have enough evidence to convict him in a civilian court, so it wasn’t worth going through the unpleasantness of trying a U.S. citizen, arrested on U.S. soil, in a military court.    

I can see this type of situation happening again, so it would have been nice if there was clear guidance from the Supreme Court.  I don’t know if Ex Parte Quirin would work in a Padilla type situation.  


Ex Parte Quirin?
Haupt, one of the members of the Germans captured in Long Island, was an American citizen.
Captured on Long Island, not in. One of those linguistic peculiarities of the New Yawk region ;)

Not having read the decision, I was unaware that Haupt was an American citizen. Definitely makes it more interesting.
Balkin has a great post on this issue. He basic point is that the government felt they had enough to convict him in a civilian court, and they could then moot his case. With the 4th Circuit decision in their favor and no SC precedent to overrule it, the government can capture a US citizen within the 4th Circuit's jurisdiction and have years before the case appears before the SC. In other words they can preserve a favorable precedent for at least a few more years.
Just finished reading Balkin's piece, it really is great, and very troubling. I can't say I agree with Brian Leiter's view, but something about this rubs me the wrong way...

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