05/16/07 – Steve Vladeck – The Scott Horton Show

For Antiwar.com and Chaos Radio 95.9 FM in Austin, Texas, I'm Scott Horton, and this is Antiwar Radio.
Well, folks, the Bill of Rights is either the supreme law of the land or it's not.
And it's looking more and more like it's not.
First guest today is Steve Ledeck.
He's an associate professor at the University of Miami School of Law, was part of the legal team that challenged the military tribunals in the case of Hamdi versus Rumsfeld, and writes at the blog profsblog.blogs.com.
Welcome to the show, Steve.
Thanks for having me.
It's great to have you on here, and I really enjoyed your article about Jose Padilla that I read yesterday or the day before, and this is one of the most important cases in American history, I'd say, and it's going on right now.
So I figured I'd jump at the opportunity to get you on to give a little bit of your expert opinion about this case.
Sure.
Does the Bill of Rights...
It's funny.
Things have sort of come full circle, but it's perhaps the most alarming fact of the case that here we are five years later, and we're finally now just getting the criminal trial underway.
Right, yeah.
Well, and I was going to ask, I guess the fact that he's getting a criminal trial now, does that imply that the Bill of Rights does in fact still exist?
Well, let me put it this way.
There's every reason to think that we're not at the cliff yet, but there are aspects of the Padilla case that I think have suggested that we were closer at various points than we'd like to believe.
You know, I think the fact that he's getting a criminal trial finally is in many ways vindication of what he and his lawyers had been fighting for for the first three years he was in custody, which is a shot at the normal process, a shot at the process that's afforded to everybody.
And I guess that's the upside.
The downside is it took so long to get to this point.
Okay.
Now play Alberto Gonzalez for me.
What's the charge?
What's this guy done for the people who don't know the story of Jose Padilla?
Sure.
Well, you know, the government's theory has actually changed a couple times.
The criminal case that's currently underway in Miami is based on an allegation that Padilla was part of this conspiracy to engage in terrorist acts overseas, that he went to Afghanistan and he went to other places in that region with the intent to train to conduct acts of terrorism.
Now, the allegations in the current complaint are all based on things that Padilla allegedly did overseas and actions that he allegedly was planning to take overseas, which I think varies somewhat dramatically from the original allegations, which was that Padilla was the dirty bomber and he was destined and intent on blowing up a radioactive bomb somewhere in the United States.
And now John Ashcroft in 2002 announced live from Moscow that they had arrested this guy as a dirty bomber and turned him over to the Navy.
Why was it that they turned him over to the Navy instead of just prosecuting him in court in the first place?
Well, you know, I think if we rewind five years and put ourselves back in the summer of 2002, you know, Padilla was for the government a very important public relations victory.
I mean, you know, here we were just about eight months after 9-11, nine months after 9-11, and Padilla was the first, you know, really bad guy who we picked up in the U.S. and who we apparently stopped, if we believe the original allegations, stopped from committing a terrorist attack in the U.S.
So, I think it was a very important part of the Bush administration's policy to hold Padilla as an enemy combatant.
They had already started holding non-citizens detained overseas at Guantanamo and adding Padilla, a U.S. citizen who they alleged was, you know, planning and preparing to blow up a dirty bomb in the United States.
Adding him to that list was actually a way of further expanding the argument that they were basically advancing at the time.
Uh-huh.
And now, whereas Yasser Hamdi, whose case you participated in was actually supposedly captured on the battlefield in Afghanistan, Jose Padilla was arrested, this American citizen born in, I believe, Chicago, was arrested in Chicago on American soil, unarmed by local or, you know, domestic police in suits, not military guys, right?
Yeah, that's right.
And I think that's part of why, for so many people, the Padilla case, much more than any of the other cases that have been brought in the aftermath of 9-11, really has always been a litmus test because here, as you say, we have a U.S. citizen arrested on U.S. soil, arrested by the FBI.
And so the question is, if that could happen to Padilla, could that happen to any one of us?
Now, you know, the government would always say, no, of course not, we had information, we didn't just do this, you know, based out of bad faith.
And they may have been acting in good faith, but even in good faith, people make mistakes.
And I think that's what is so alarming about this case is that someone like Padilla, who was just in the wrong place at the wrong time, I'm not saying he was, but someone who fit his profile, but just, you know, was in the wrong place at the wrong time, you know, it could take as long as it had taken for that person to really finally have their day in court and a meaningful chance to, you know, to protest the government's treatment of him.
Right.
And this is something that I just, you know, I understand that you have to explain this to a seven-year-old or an eight-year-old the first time so that they understand, but this is something that you shouldn't have to explain to adults, that we give trials to the most vicious murderers, to the most horrible people in our society.
We give them trials because it might not be him.
That's right.
And, I mean, Justice Frankfurter has a quote, which I always like to repeat to the heads of my students, which is that, you know, our most cherished safeguards of liberty have been created in cases involving not very nice people.
I think that's exactly what's at stake here, you know, because he may be a bad guy.
I mean, you know, for all we know, the government allegations may actually ultimately be correct.
But we have prospects, we have trials, we have, you know, constitutional rights, not just, you know, to defeat the government, but to actually ensure that the government is not acting arbitrarily.
And that's really the danger here.
And now, if I can make the case for this guy a little bit, since it seems nobody else will, I don't care.
Russell Fincher, the FBI agent who arrested him, admitted to the court, and there were reporters who wrote it down during one of the pretrial hearings, that he was trying to flip Padilla and put him at the center of a dirty bomb case in order to be a sting operation, and Padilla refused.
And then they arrested him on a material witness warrant.
The agent said he didn't think Padilla was dangerous.
He didn't think Padilla was dangerous.
He was trying to create a dirty bomb plot.
And then when Padilla refused to turn into a snitch for these guys, then they accused him of a dirty bomb and turned him over to the Navy.
It sounds to me like he's an innocent man.
That's why they turned him over to the Navy, because they didn't have any evidence against him.
It's entirely possible, and I think one of the most frustrating aspects of this case is the government's public position is that it has all this evidence that it cannot reveal publicly, that it cannot reveal publicly because it would compromise national security interests.
It cannot reveal publicly because the means by which it was obtained might raise legal problems.
But we can't know, and it's hard, I think, in this environment to take the government's word.
And so that's exactly why it's so important that he's finally going to stay in court, because if in fact that's what happened, if in fact the deal is basically set up, now he actually has a real chance to prove that.
Yeah, trust us, we have secret evidence that we can't tell you about, but we know it's really good.
Where have I heard that before?
And that's always a problem in these cases, because the reality is that surely there are some cases where they do.
I can't imagine that every single person in every single position that matters is acting in bad faith in all of these cases.
But the problem is that it's hard to sense that the executive branch is best suited to weed out the real cases from the superficial ones.
And you know, in my experience, well, from the outside, obviously I'm not a prosecutor or defense attorney or anything, but just from watching various trials over the years, it seems to me that a lot of times the federal prosecutors don't really know anyway, they're basically prosecuting whatever case they're told to prosecute, and these details don't bother them.
I mean, I'd be willing to bet, for example, that the prosecutors who are prosecuting Padilla right now don't know that former Deputy Secretary of Defense Paul Wolfowitz admitted to Newsweek that there is no evidence of a plot beyond some, quote, fairly loose talk.
No, right.
I mean, I think, you know, there's this sort of left hand not knowing what the right hand is doing problem here.
And indeed, the government has actually tried to almost hide behind that in the Padilla case, you know, when Padilla raised the allegation that he was mistreated well in the Defense Department's custody, the government's basic response is, well, that's the Defense Department, we're the Justice Department, which is ironic, given that from Padilla's perspective, they're all the same.
Right.
And now, if we can focus on that a little bit, the mistreatment of Jose Padilla, can you tell us, you know, what little you may know about that?
Sure.
Well, I mean, we know what's alleged.
And what's alleged is that Padilla was not just held in solitary confinement, but that he was actually subjected to various coercive methods, to sensory deprivation, to various dietary manipulation, and other things that, you know, he alleges are torture.
Whether they rise to the legal definition of torture or not, the allegations, if true, do certainly paint a picture of the government mistreating Padilla and treating him inconsistently with prior practice with what has been, you know, upheld by the court.
You know, the problem is, is that the question is, if that's true, what do you do, right?
If that's true, what is the sanction the government faces for the mistreatment?
And what Judge Marcia Cook, who's presiding over Padilla's criminal trial, said is, at least in the criminal trial, the only relevant sanction would be the exclusion of any evidence that the government obtained from their, you know, as a result of their mistreatment of Padilla.
And the government was already not going to offer any evidence that arose out of his military detention.
So, you know, she decided that wasn't an issue.
The harder question for me is going forward, whether Padilla is ultimately convicted or not, might he have a damages suit?
You know, might he be able to bring a lawsuit that says he's entitled to compensation for how he was mistreated while in military custody?
I think that would be an awfully hard and uphill battle for Padilla to fight.
Right.
You wrote in your article that he would have to prove that they all knew they were breaking the law while they were torturing him.
Or at least that, you know, a reasonable person in their position would know.
Now, you know, it's easy for us to step back and say, well, what government official wouldn't know that it's against the law to torture somebody?
But, you know, I think that's almost hyperbolic in a way that I think the courts wouldn't look at it, right?
The courts would say, well, no, the question is, was the exact stuff that the government was doing to Padilla stuff that had been previously held to violate, you know, an individual's constitutional rights?
And the reality is that the area of the law is extremely murky, and the courts have always been excessively deferential to the executive branch in these kinds of cases.
Yeah, well, it's not torture if it's just an enhanced interrogation technique.
Well, I mean, you know, part of what's frustrating about this case is, you know, the whole purpose of international, the international legal protections that would apply here is, you know, the whole idea that you cannot actually, you know, whether it's torture or just coercive interrogation.
You can't interrogate the Tadeus.
Now, the government's response is that Padilla was an unlawful combatant, that the Geneva Conventions don't apply, but again, we're back in this, you know, if the government says that it must be true approach to all the legal issues here.
Right.
And I guess really, if the judge has said that they can't use evidence tortured out of him against him at his trial, he got off better than Abu Ali, the guy who was tortured by the Saudis and prosecuted for a plot to kill George Bush.
They allowed the tortured evidence from him, but refused to allow the jury to know that that's where the evidence came from.
Torture in Saudi Arabia.
I think that's probably right.
I mean, I think there's, you know, a lot less attention has been paid and was paid at the time to the Abu Ali case.
I think part of that's probably because of like Padilla.
Well, no, I guess actually like Padilla, right?
I mean, they're both US citizens, but, you know, they sort of, they were able to use what the Saudis had apparently been able to get from him when he was in Saudi custody to find other evidence.
I think a lot of the case relied upon, you know, what they were able to get sort of from that.
But no, I mean, I agree with you.
I think there are very serious questions about the Abu Ali case that fortunately are not present in Padilla.
I mean, at the end of the day, the actual criminal trial in Padilla, to me, doesn't actually raise that many constitutional issues.
The bigger constitutional issue is whether and to what extent they'll ever have a chance to really obtain a judgment on the legality of his military detention.
Right, because it's a done deal.
Right before the Supreme Court had a chance to say that it was not allowed, they've removed it.
They went ahead and indicted him so that the court, so that Padilla wouldn't have standing in court anymore.
That's right.
I mean, you know, the Padilla case went up and down in the federal courts twice on the military detention issue.
The first time it went to the Supreme Court, the court said the federal appeals court in New York didn't have jurisdiction to issue the rule that it issued.
And then right before it came back to the Supreme Court the second time is when the government indicted Padilla.
And I think, you know, a lot of people suspected this entirely because they could read the tea leaves and they could see that they were probably going to lose on the merits if it went back to the Supreme Court.
But instead the Supreme Court denied Padilla's application for a review and said, look, you know, we don't think, we think this is a very important case.
We don't take the issues lightly here, but the reality is that what you're complaining about, you know, has now been remedied.
You're no longer in military detention.
And so anything that we could do would really just be hypothetical.
Now then, I guess while it was going through the court and they denied his jurisdiction, his standing from, was it New York, and said he had to refile in South Carolina and all that.
During this time, when I guess, no, I'm sorry, I'm mistaking that, during the time after they indicted him, but before the trial, the Supreme Court ruled in a similar case that no, in the Hamdan case, if I remember correctly, that no, Mr. President, you cannot kidnap people and hold them under military detainment, et cetera, unless Congress passes a law and says it's okay.
And then Congress turned around and passed a law that said it was okay, the Military Commissions Act of 2006, right?
Yeah, that's right.
And I think, you know, what's sort of troubling about, I mean, Hamdan, I think, was a very significant decision from a separation of powers perspective, because what it in effect tells is that it's not that military tribunals are per se unlawful, it's that they have to be authorized by Congress.
You know, unilateral presidential military tribunals are what gives rise to legal problems.
And so, you know, Congress, of course, comes right back and passes the Military Commissions Act, which I think is troubling not just because of the substance of what it does, but because of the extent to which it also at least attempts to take away the power of the federal court to pass on a large number of the cases that would arise under the act.
And that, you know, at least in the Guantanamo context, that's where all the fighting is right now.
And that has worked, right?
Haven't three or four different courts said, sorry, I'd like to hear this case, but I can't?
Yeah, I mean, at least thus far.
Now, we're not, I mean, I don't think it's been quite the disaster that some people thought would be yet, because what the courts have basically said is at least we're not ready to hear them yet.
Because what the Military Commissions Act does is it contemplates a two-step process where after the detainee has his combat status review tribunal, or after he has his military commission, then he can go to the federal appeals court in Washington, the D.C.
Circuit, and get the D.C.
Circuit to review what the military did.
And so what the courts that have ruled on the Military Commissions Act thus far have said is that at least until the D.C.
Circuit conducts that review, there's no problem, you know, we don't have jurisdiction.
But they haven't said that the Military Commissions Act completely takes away their authority.
And indeed, earlier this week, where the oral argument in the D.C.
Circuit on whether the process that remains, on whether the process that's provided by the Military Commissions Act is constitutionally sufficient, at least from the reports of the argument, two of the three judges on the panel were very, very skeptical of the government's position.
Now, again, I'm no lawyer, so help me out here.
Is it not the case that if you're a federal judge and the statute says that you don't have jurisdiction over this case, but you believe that the statute itself is unconstitutional and that the higher level of rights are being violated, a higher level of law, such as the Bill of Rights, is being violated, can't you then just take that jurisdiction and say, you know, even though this law says that I don't have jurisdiction over this case, the Constitution says I do?
Yeah, I mean, actually, you do really well in my common law class.
The power, the idea that it's what we call jurisdiction to determine jurisdiction.
So even though the Military Commissions Act does take away the federal court's jurisdiction, if it's unconstitutional in so doing, the courts do have the power to say that.
And so, you know, there is hope, I guess is the bottom line here.
And indeed, you know, the courts have been, I mean, I think the media has portrayed the courts as being very recalcitrant, but I think they've actually been fairly responsible thus far.
I mean, I think, you know, the latest round of decisions hasn't really upheld the Military Commissions Act across the board, but has been more focused on the idea that they want to wait to see whether the process that the Act affords is going to be enough.
And if it's not, I guess the courts will step in, in a heartbeat.
Some legal experts, I know Jacob Hornberger from the Future Freedom Foundation has predicted this, and I've read it in some other places as well, that if Jose Padilla is acquitted on these charges, which again have absolutely nothing to do with radioactive dirty bombs or blowing up apartment buildings, but that if he is acquitted of these charges, that the military will go ahead and kidnap him and take him back to South Carolina anyway.
I mean, you know, that is the speculation.
There's a fascinating paragraph.
I mentioned before that the Supreme Court denied review of Padilla's case the second time around after he'd been indicted.
Justice Kennedy, you know, who I think almost everyone agrees is the critical vote on almost all of these issues, wrote an opinion, concurrent in his Nile review, which is a little bit unusual.
And the opinion was joined by Justice Stevens and by Chief Justice Roberts.
And what the opinion said is after Kennedy explained why he didn't think the court should take the case now, he emphasized that if, you know, Padilla should be put back in military custody at any point, you know, the courts will and must step in very quickly.
And indeed, he even cited the very special and seldom invoked rule by which litigants can go right to the Supreme Court.
And I think most, you know, followers of the court have taken Kennedy's opinion as a rather stern warning to the government that, you know, once they've made the choice to indict Padilla, they were stuck with it.
And, you know, it's up to the criminal justice system now, and the criminal justice system is going to have the final say.
I mean, I think, you know, I can't say whether for sure the government would, you know, move Padilla back to military custody or not.
But I think the Supreme Court would be very, very quick to review that and to, I think in many ways, very likely repudiate the government for doing that.
Seems to me the Fifth Amendment is explicitly clear with a period at the end that the government is forbidden from depriving any person of life, liberty or property without due process of law.
No, for sure.
But I guess, you know, the government's response, which I mean, I don't agree with, but just to sort of give it at least, you know, Aaron.
The government's response is, you know, the critical question is not whether Padilla has due process rights, but how much processes actually do.
And what the government would say is, you know, he's gotten a lot of process.
I mean, look at all the courts that have reviewed his case.
Now, I think that's, you know, I think that's a load of bollocks.
But, you know, the real question, I think, is whether the sort of the process Padilla has been given is itself ever going to be meaningfully questioned.
You know, I mean, the only thing that's going to happen now is Padilla is going to be convicted or he's going to be acquitted.
And I don't think there's going to be a real sort of evaluation after the fact of whether what has happened to him thus far has been inconsistent with, you know, American ideas of due process, even though I think many of us, and I include, I certainly feel this way with him that it is.
But like on the question of double jeopardy and that kind of thing, I mean, that's still in play.
I understand what you're saying is he no longer really assuming they don't kidnap him again and turn him back over to the Navy.
He doesn't really have any standing to do anything about what they've already done to him.
Except maybe a damages suit.
And, you know, as you said, I mean, I wrote in this column for jurists on Tuesday.
You know, I mean, I think I don't mean to sort of forward the result, but I think a damages suit would be awfully difficult for someone like Padilla to maintain.
You know, the Maher Arar, the Canadian citizen who was rendered to Syria, you know, he tried to bring the damages suit and couldn't even get it off the ground.
Yeah.
And his was even a more clear-cut case, wasn't it?
That's right.
I mean, you know, in fact, the district court in Brooklyn, which rejected his case, even said, you know, we'll accept for the sake of argument that Arar, A, has constitutional rights and B, that those rights were violated.
And even accepting that, you know, they still held against it.
Now, that decision is currently on appeal to the federal appeals court in New York.
I'm hopeful that they'll reconsider it, but it's hard.
The problem is that, you know, traditionally courts are far more skeptical of damages claims in these kinds of cases than they are of these sort of threshold detention claims.
You know, if the person's actually still in custody, they're very careful.
They tend not to be very deferential.
But if they're free and they're just looking for compensation for what was wrong, you know, for how they were wronged, you know, I think the courts are, whether we're okay with it or not, I think the courts are and have always been more reluctant in those kinds of cases.
Right.
There was a lawsuit not long ago against Donald Rumsfeld for torture that was dismissed where the judge said, hey, listen, this is actually a pretty good case you put together here, and I'd really like to hear it, but, you know, the secretary of defense has sovereign immunity for anybody who tortures while he's on the clock, so case dismissed.
Yeah, I mean, it's the problem with damages law, and I think, you know, there isn't very much public attention paid to these kinds of sort of more technical areas of American jurisprudence, but the Rehnquist Court, I think, very consistently over the course of the last 20 years made it that much harder for litigants in damages cases to actually have a meaningful chance of recovering.
And now, where does all this come from?
I'm interested in the origins of unitary executive theory.
You say in your article, though, that the administration is actually taking two separate tactics to justify this power, one of them invoking the authorization to go to Afghanistan to find Osama bin Laden, and the other which says, never mind that, the president has unlimited power anyway.
Right, I mean, I think, you know, the Supreme Court in the three cases from 2004, Padilla being one of them, I think did a pretty thorough job of rejecting the inherent executive power argument, and to whatever extent they didn't in 2004, I think the Hamdan case in 2006 really went a long way.
The court has been pretty good in the post-9-11 context at not sort of deferring to the Article 2 based argument, to the notion that the president does have all this inherent constitutional power.
The fourth side of that is that the court has read what you referenced, the authorization for use of military force against Al Qaeda and the other terrorist groups who were involved in 9-11, which was passed just like four days after 9-11, the court has read that probably a little more broadly than Congress meant it to be.
And so I think, you know, we've seen the court doing sort of a very good job on the con law, separation of powers stuff, and being a little more deferential when and where Congress has acted.
So I guess that really is progress, the Hamdan decision, that was really the test case for whether the president has this inherent authority, and they rule that he didn't.
That's right.
I mean, the way the court did that is, you know, the issue in Hamdan was whether the military tribunals that President Bush had established in November 2001 were lawful.
And what the court basically said is, look, Congress has created all of these statutory authorizations and all of these procedures for how to try these kinds of people.
And, you know, what the president has done is so inconsistent with those statutorily prescribed rules that we can't sustain it.
And so what Hamdan in effect says is, Congress has the power to limit the president's powers.
Congress has the power to say, you know, Mr. President, if you want to have these military tribunals, here's how you have to do it.
And the president can't deviate from those limitations.
That's the significance of Hamdan.
Now, I'm confused.
From a legal standpoint, when the Supreme Court ruled that George Bush did not have the authority to kidnap these people and have them held by the military in the Hamdan case, why is that not the same as him being indicted for multiple counts of kidnapping?
I mean, they were saying he'd been breaking the law that whole time.
Well, you know, it's a little tricky.
I think it's one thing to say that the president at the executive branch has been acting unlawfully.
It's nothing to say that, you know, they are thereby subject to criminal liability.
Well, that's funny.
That's not the way the law works when I break it.
Well, that's true.
I mean, that's certainly true.
I guess this sort of ties back together with what we were talking about before with the damages cases, which is that, you know, for reasons, some of which make sense and some of which don't, I guess the courts have long not wanted to keep the executive branch from zealously enforcing the law.
So the way that the various legal doctrines have evolved, the test today is whether someone reasonably could have believed that what they were doing was lawful.
And so I guess, you know, the question would be when the Bush administration authorizes warrantless wiretaps, could they have reasonably believed that that was lawful or constitutional?
You and I probably have our own answer to that question, but it's a lot, you know, if the world worked the way we wanted it to, you know, things might be better.
But I think the reality is that the test, the legal test, of course, in these cases is far more deferential to the executive branch than perhaps we're ultimately comfortable with.
Well, yeah, I've never heard of a citizen, I don't think, using the defense that, hey, a reasonable person could have believed that what they were doing was lawful, Judge, so let me go.
Well, I mean, let me try to give you an analogy.
I'm not trying to say I don't agree with you because I think I do.
But just to give you a hypothetical that you'd probably, you know, get from the other side, I mean, if a police officer, you know, does kill somebody by accident, right, then someone's reaching for a gun when in fact they were just reaching for, you know, a cigarette.
That's a good example.
What, that?
I was saying, I was going to, pardon me, I was saying that's a good example to use because it's obviously very different if a cop's, if a cop accidentally kills someone or if you do.
No, right.
And so, right, so there's, so there's long been this distinction between public authority and private authority.
And there's long been this idea that the public authorities get a little more leeway, that they get to make mistakes more than we do.
And so in fact, actually, in most states, a police officer is allowed to make that mistake that I referenced, whereas a private security guard, even one with a licensed gun, can't.
A private security guard would actually be liable in that case.
And this is not a recent development, post September 11th, everything changed and the president does all these crazy things.
You're saying this is the way it always is.
Yeah, I mean, I would say it always is.
It's certainly the way it has been for about 25 or 30 years.
I mean, the sort of the high watermark of the idea of sort of a broad availability of damages was probably about 1971 in a Supreme Court decision called visits.
And then, you know, with the end of the Warren Court, you know, we saw a fairly pronounced series of cases that constrain the availability of damages that imposed higher burdens on the plaintiff.
You know, and so I think it has the sort of negative effect of making a release that much harder in all of these current cases.
But at least for once, I think this one is not attributable just to, you know, the world after 9-11.
Right.
And now as far as the world after 9-11, depends on who I'm interviewing, what they say about this.
But I try to ask more or less the same question of legal expert types, whether they think that the Bush administration and the acts that they've taken in power since 2001 really constitute a full scale revolution within the form, a real watershed kind of turning point in the way laws apply to the American people and the powers of the executive branch, or whether they think this is just more of the same, maybe with the heat turned up a little more.
I probably end up somewhere in the middle.
I don't think every thing the Bush administration has done, or even most of what the Bush administration has done, has been, you know, really unprecedented.
But there are a couple of pretty big things for which there wasn't really that much historical precedent.
First, you know, presidents going back to FDR, and even in some ways all the way back to Abraham Lincoln, have relied upon the Commander in Chief idea, the notion that the Commander in Chief clause of the Constitution gives them this broad, inherent power.
What's new about the Bush administration's version is the notion that part of what it also does is it limits Congress's power to constrain the president.
It's always been, I shouldn't say always, in modern times, presidents have always argued that when Congress has not acted, they have lots of power, lots of inherent authority to do stuff.
The difference in the Bush administration's approach is their version is, even when Congress has acted, we can do it in contravention of Congress.
Now, that's where I think the Supreme Court decisions are very important because, at least implicitly, they reject that view.
The second thing, the second way in which what the administration has done has been rather unprecedented is the extent to which, at least prior to the midterms last year, they basically just sort of didn't worry about institutional prerogatives.
They didn't worry about whether Congress had authorized something or hadn't authorized something, and Congress didn't worry about it either.
We didn't have that many examples of the administration acting contrary to congressional intent because Congress wasn't asserting itself.
I think that's really, in many ways, what was responsible for a lot of the more significant, more controversial, more potentially illegal activities of the administration.
I see.
And one last question on the Padilla case here before I let you go.
I assume that you've read the indictment.
I don't know whether you're keeping up with the first couple of days of the trial so far.
Does it seem like they have a case against this guy at all?
You know, I think at the end of the day the answer is yes.
It's not a very strong case.
It's certainly not nearly as big a case as the government has always made it out to be.
I mean, the reality is Padilla is one of three codefendants.
The other two codefendants are both charged with actually being principals in this conspiracy.
They were apparently at least two of the organizers and the guys who were sort of doing the heavy lifting.
And Padilla, the charges against Padilla are basically just that he went along with them, that he was a follower.
That's an awfully, you know, I don't want to say insubstantial because ultimately it carries a life sentence, but it's an awfully reduced role for Padilla than that which has always been portrayed by the government, by the media.
But at least if the allegations are true and if the government can make its case, you know, I think there probably is enough there.
Of course, you know, it's always hard to sort of Friday night quarterback the jury.
It's always hard to what now?
Sort of like, you know, speculate about what the jury is going to do.
Oh, well, yeah, I understand that.
I just wondered whether they even, I mean, hell, I think if they had no case at all, they could probably still get a conviction.
That's kind of besides the point whether they can Buffalo a jury into doing what they want to me.
But my reading of the indictment and I can't say, you know, I'm an expert in it or anything, but it sounds to me like, you know, he knew a guy who sent some money to a guy who fought in the holy war in Kosovo, which, you know, Bill Clinton was fighting on Osama's side in the war in Kosovo.
So, I mean, wouldn't that be Padilla's defense that he was only helping Bill Clinton kick the Serbs out of Kosovo?
Sort of, I mean, you know, it's a little, I mean, I don't think that'll be quite the tactic.
What we'll probably see is more the idea that, you know, if you didn't really know what he was doing, that his intent wasn't to actually give support to territory organizations who were fighting against the US, you know, that he was just the sort of, you know, loner who got involved with the wrong people at the wrong time.
I mean, I guess, you know, the problem with this case, at the end of the day, you know, what Padilla has alleged to have done is illegal.
Now, you know, I think there are problems with the statutes that he's being tried under.
I think one of the statutes, the material support statute, comes awfully close to punishing, to imposing, and to appeal by association, which, you know, is unconstitutional.
But if the statutes themselves are constitutional, it's not, you know, I think there is something to be said for the government's case.
Now, all that being said, you know, I still think it's really important to step back and say, but this is not anything like what the government said they had on him.
I mean, you know, at the end of the day, this is the government getting Al Capone for tax fraud, you know, and not even for as serious a tax fraud as they got him for like one, you know, one year where he forgot to pay $100 in taxes.
It's still illegal, but it just sort of pales in comparison to the initial charges against him.
Right.
But all that's taken care of, because as you explained, the judge ruled that, oh, it's fine as long as you don't use any of his torture testimony against him and you don't bring up anything he said during his military detainment, kidnapping, then it's just fine.
That has nothing to do with this case.
That's the military.
This is the Justice Department.
I think going forward, that's why I wrote in the column that you referenced earlier, that's why I think this trial is going to be anti-climactic.
Because whether he is ultimately convicted or not, you know, it's not going to be in any meaningful way a referendum on his military detention, a referendum on the government's actions and treatment of him in detention, or a referendum on the Bush administration's broader policy of detaining people as enemy combatants.
Yeah, I'd agree with that.
And since I still have a couple of minutes and a law professor on the phone, let me ask you one more thing.
I've seen the Lodi case, the kid who was accused of, convicted of plotting to set off a bomb at the subway station in New York, the Miami guys who supposedly were going to blow up the Sears Tower, and now the Fort Dix plot in New Jersey.
Each and every one of these, they admit up front, were to what I always understood the definition to be entrapment.
They had federal informants find some idiot and buffalo him into saying on tape he'd do something stupid.
And then they set up these big prosecutions, basically what they were trying to get Padilla to cooperate in when he refused back in 2002.
And I just wonder, what's the difference between what's going on in these so-called terrorism cases and entrapment?
It's an awfully fine line, and I think there are serious questions to be raised, and I think in some cases it has been raised, about whether the government is bending over backwards so far to try to get these guys involved and on tape to them and say the wrong thing, that they're actually becoming players and participants in the conspiracy.
Let me dumb this down so that you can explain it on my level, okay?
You offer to smoke some pot with me, and I'm a cop, I can bust you for it.
I'm a cop, and I offer for you to come and smoke some of my pot, I just entrapped you.
Right?
Simple as that, right?
That's right.
The trickier part is, you and I are heading out, you don't say anything overt, but you body language.
The problem is that the scenario you pose is black and white, so the legal reality is always gray.
Don't get me wrong, I'm with you on this, I think there's actually a bigger problem in these cases, which is that there are fairly widely sophisticated reports that at least in some of the early terrorism prosecutions, the government extracted plea deals by threatening the suspects with being transferred to Guantanamo.
Right, that's what happened to the guys in Virginia, the paintball terrorists.
Right, and the Lackawanna sticks in New York.
And I think there has not been, you know, the media is sort of so obsessed with every new allegation, you know, the fourth example from last week is a good example.
There hasn't been any real serious discussion of the tactics the government is actually employing in each of these cases to secure these arrests.
And I think the reality is that I imagine some of those tactics would not be consistent with at least what the 4911 we thought was the legal minimum.
Alright, we're all out of time, but this has been great.
I hope I can kind of keep you on my list as a legal expert I can refer to and ask these questions of in the future.
Sure, I'd be delighted Scott, thank you.
Alright everybody, Steve Ledeck, he's an associate professor at the University of Miami School of Law in Miami, Florida.
Thanks very much for your time today.
Thank you, Scott.