Category Archives: Padilla

Thoughts on Snowden’s Dead Man’s Switch

Posted on July 18, 2013 by Michael Froomkin

It would have been more morally pure for Snowden to choose to stay home and face the consequences after his act of civil disobedience.

I don’t think it follows, however, that Snowden is acting irrationally or treasonously or (wrongly) “taking a hostage” by setting up (or claiming to set up) an information-disclosure insurance policy against reprisals by the US. For evidence for this proposition one need look no further than the very eloquent NYT op-ed by Nasser al-Awlaki, The Drone That Killed My Grandson. Remember that we now live in a country that has a track record of executing US citizens (so-called “targeted killing”) without trial, at least outside the US. The limiting principle, we are told, is that the US only does this when it considers them a grave threat, and cannot get hold of them any other way because they are beyond the reach of arrest — not principles likely to be of great comfort to a Snowden.

For a cryptographer’s analysis of this tactic, see Bruce Schneier’s, Snowden’s Dead Man’s Switch. Schneier suggests it may be counter-productive:

I’m not sure he’s thought this through, though. I would be more worried that someone would kill me in order to get the documents released than I would be that someone would kill me to prevent the documents from being released. Any real-world situation involves multiple adversaries, and it’s important to keep all of them in mind when designing a security system.

A commentator counters that in fact this creates a different incentive:

If the US does not want these secrets released then it is in their interests to keep him alive.

It’s also makes it more imperative to capture him in case anyone else kills him.

Posted in Cryptography, Law: Criminal Law, National Security, Padilla | 2 Comments

Gitmo In America

Posted on October 8, 2008 by Michael Froomkin

Just plopped into my mailbox:

New Military Documents Reveal Unlawful Guantánamo Procedures Were Also Applied On American Soil

According to newly released military documents, the Navy applied lawless Guantánamo protocols in detention facilities on American soil. The documents, which include regular emails between brig officers and others in the chain of command, uncover new details of the detention and interrogation of two U.S. citizens and a legal resident – Yaser Hamdi, Jose Padilla and Ali al-Marri – at naval brigs in Virginia and South Carolina.

The documents were obtained under the Freedom of Information Act by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the American Civil Liberties Union.

According to the documents, Navy officers doubted the wisdom of applying Guantánamo rules on American soil. In particular, officers expressed grave concern over the effects of the solitary confinement imposed upon the three men detained at the brigs, a practice that was considered to be even more extreme than the isolation imposed at Guantánamo. Navy officers also exhibited frustration with the Defense Department's unwillingness to provide the detainees with access to legal counsel or any information about their fates. The documents clearly show that the standard operating procedure developed for Guantánamo Bay governed every aspect of detentions at the two bases inside the United States. Though Navy personnel tried several times to improve the harsh conditions under which Hamdi, Padilla and al-Marri were detained, senior Defense Department officials repeatedly denied the requests.

The press release

The newly released documents

The Guantánamo Standard Operating Procedure

Posted in Guantanamo, Padilla | Comments Off on Gitmo In America

Luban on Padilla v. Yoo

Posted on January 13, 2008 by Michael Froomkin

David Luban has a great meta-post on Padilla v. Yoo.

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Padilla Verdict

Posted on August 16, 2007 by Michael Froomkin

I'm hearing from a couple of sources that the jury found Padilla guilty on all three counts: conspiracy to murder, maim and kidnap.

Update: Yes, Cnn.com confirms the verdict.

From what I read of the trial, I did not think the evidence was sufficient to convict him, but these judgments are better left to commentators who were actually present in the courtroom.

Posted in Padilla | 6 Comments

On ‘Outrageous’ Government Conduct

Posted on July 17, 2007 by Michael Froomkin

I read the news that Judge Lewis A. Kaplan dismissed the criminal tax case against 13 KPMG defendants with a little bit of bemusement.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here's a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees' legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants' rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values – the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I'm prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there's some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government's conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I'm always a bit nervous posting about cases based only on news reports. If there's something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Posted in Law: Constitutional Law, Padilla | Comments Off on On ‘Outrageous’ Government Conduct

Fireworks at the Padilla Trial

Posted on July 3, 2007 by Michael Froomkin

Local federal court uber-blogger (and sometimes cheesecake purveyor) David Marcus points out that the lawyers in the Padilla trial have something to worry about over July 4th:

Southern District of Florida Blog: Dress up day…: In the Jose Padilla trial, jurors showed up today all dressed up. Row one in red. Row two in white. And row three in blue. I'm not kidding.

And this isn't the first time the jury has dressed up. A week back, all of the jurors (save one) wore black.

So what do you make of this. On the one hand, the jury might just be having some fun. This is a long trial and it's not a one hour Law and Order show. It's boring.

Perhaps the jury is unified, which might be a poor sign for the defense. If everyone is thinking the same way at such an early stage, defense lawyers get nervous. Or the prosecution might be concerned because this is obviously a happy jury. Happy juries during a terrorism trial might not be good.

The trial is in recess until next Monday so the lawyers will have plenty of time to make themselves crazy over what all this means.

Meanwhile, the government has put on Dr. Rohan Gunaratna, its most effective expert witness on terrorism — and apparently the Judge has allowed him to avoid testifying about some of his sources and methods, which is slightly odd. He's also been admonished giving an interview during the trial. Which is not Dr. Gunaratna's first experience of official criticism: in 2003 the CIA criticized his accuracy.

Posted in Padilla | 1 Comment