re: #8 Charles

Yes, that was his excuse — he was thinking of Padilla. Except that Padilla wasn’t arrested on an airplane.

Anyway, if this is true, it actually makes his case even weaker, because Padilla was eventually tried and pleaded guilty in a civilian court and is now serving a long prison sentence.

Andy McCarthy explains why a criminal trial for Padilla was a bad idea:

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.