Padilla’s Troubling Journey Through the Justice System

Jose Padilla’s conviction for conspiracy to commit terrorist acts and provide material support to terrorists is the end of a long troubling journey in the post 9/11 criminal justice system as conceived by this Department of Justice. Upon Padilla’s arrest in 2002 at O’Hare Airport, he was held indefinitely by DOJ as a material witness and sent from the 7th Circuit to the 2nd Circuit. When a federal judge told Attorney General Ashcroft that he had misused the material witness statute and could no longer hold him, the decision was appealed. But before the appellate court could confirm that, Ashcroft relabeled Padilla an enemy combatant and he was handed from DOJ to DOD and taken down to the 4th Circuit, where successive federal courts found him properly detained. When his case was remanded by the Supreme Court for improper procedure in 2004, Padilla remained in a military brig as his case worked its way back up to the Supreme Court. However, before his case was heard by an uncertain array of justices, DOD gave Padilla back to DOJ and relabeled him a criminal. Padilla was taken down to the 11th Circuit and tried in federal court on conspiracy charges under a statute that defines conspiracy so broadly that sending someone a video on the life of Martin Luther King, Jr. can be considered providing material support to terrorists. That a U.S. citizen, no matter how bad they are, can be jerked from Illinois to New York to South Carolina to Florida before multiple courts on multiple charges, remain in solitary detention by the military for 3 1/2 years and spend part of that time without access to counsel, is mind-boggling. Are we re-writing the rules on due process? It sure would be nice to know.