The Talking Dog

January 5, 2006, TD Blog Interview with Andrew Patel

On September 9th, the United States Court of Appeals issued a decision in the case of Jose Padilla v. C.T. Hanft, reversing the granting of habeas corpus by United States District Court Judge Henry Floyd of South Carolina, in the ongoing saga of what I have opined more than once as the most important legal case of our lifetimes. Mr. Padilla (prounounced as Pa- dill-a), as you will recall, was arrested in 2002, and Attorney General Ashcroft triumphantly announced (from Moscow no less, missing the irony of his doing so, from there) that the Government had captured Mr. Padilla and thereby thwarted a purported "dirty bomb" plot against the United States by Al Qaeda. The President declared Mr. Padilla an enemy combatant, placed him in the custody of the military, and he was placed in detention in a brig in South Carolina, without charge, trial, or (until just before the Supreme Court agreed to take review of an earlier habeas corpus petition brought in New York, after nearly two years in confinement) access to his own counsel. Brooklyn born Mr. Padilla thus remains the first and only American picked up on American soil and held as a purported "enemy combatant".

On September 20, 2005, I had the privilege of speaking, by telephone, with Andrew Patel, one of the attorneys who is representing Mr. Padilla. (My earlier interview with Donna Newman, co-counsel for Mr. Padilla) is here . Since this interview, the Government has elected to charge Mr. Padilla in an indictment in the Southern District of Florida. As recently as yesterday, the Supreme Court has permitted Mr. Padilla's transfer to civilian custody, but it has not yet determined whether it will accept review of the Fourth Circuit's decision against him.

What follows are my interview notes, as corrected where appropriate by Mr. Patel. [In some cases, I have also edited questions and/or answers to reflect events that have transpired since the interview.]

The Talking Dog: I always ask this question first. Where were you on the morning of September 11, 2001?

Andrew Patel: Do you know the answer?

The Talking Dog: I do know your day started at or near your office building, across the street from my own, in Lower Manhattan.

Andrew Patel: Well, I came to work that day. I was directed through the lobby of my office building, but was not permitted to go upstairs. I arrived just seconds after the second plane hit. I was directed to go outside, where I stood shoulder to shoulder with others from my office suite, as we just stood and watched the World Trade Center from around a block away on Broadway, and waited for the helicopters to arrive. I didn't see the building fall. I felt something-- a brown cloud of dust, which I later learned moved at around 140 m.p.h. in all directions as the tower fell. I got two steps, and the lights literally went out. If you put your hand in front of your face, you literally could not see it. I lifted my hand to feel for my glasses, and they were still there. I ended up in front of your building. I couldn't see. I couldn't breathe. I was pelted with a wind of ash and whatever else was there, and ended up inside your building, which, even though it has revolving doors, somehow I got into without going through revolving doors.

I found an air event pumping breathable air inside. It wasn't much better than the air outside. I don't know how to say this, but the sun came back out at some point, and eventually I ventured outside. Before then, clustered around this air vent were literally people from every ethnic group in New York City.

When I walked outside finally, people were just astounding. I eventually walked all the way up to Grand Central Station, while I was literally covered in grey stuff. People walked along with me, and asked if everything was o.k. Around Bleecker Street, someone grabbed me by the shoulder and took me to a rest room to wash my face. It turned out I had chemical burns in my eyes from the ash, and I was told by eye doctor, from compressed wall board and plaster pulverized by the collapsed towers, and the lye contained in it became a kind of acid. Fortunately, there was no permanent damage to my eyes. In part, because the woman who grabbed me was able to locate eye drops that I used.

It turns out that woman is Barbara Olshansky, who is an attorney (and someone you may want to talk to) who herself represents a number of Guantanamo detainnes. Some months later, at a meeting, having not seen her since 9-11, she came up and hugged me. We met in those rather unique circumstances, and still work together...

The other thing that was extraordinary was how calm and cooperative most New Yorkers were; for example, people just got out of the way of access points to hospitals and police stations because they would be needed for the emergency.

The Talking Dog: Have you ever pointed out that fact to any of the courts to whom you have argued on behalf of Mr. Padilla, including and especially the Fourth Circuit Court of Appeals? I ask that because I find it curious that the courts in New York, where the judges themselves were a few hundred yards from the World Trade Center that morning, have, to some extent, treated Mr. Padilla's case somewhat differently from judges in other parts of the country, who were not.

Andrew Patel: I have not pointed that out to any court in which I have represented Mr. Padilla. I do note that to many people, events that they witness on television are more frightening to them than real events that people actually experience.

The Talking Dog: Do you think the composition of the Supreme Court will matter much on the outcome? Put another way, do you see any reason why Chief Justice Roberts, who participated in the Hamdan decision, would vote any differently on the appeal of Padilla (assuming the Court accepts review) as the late Chief Justice Rehnquist?

Andrew Patel: That's a very good question, and probably not answerable. When you change the composition of the justices on the court, and who argues what among the justices themselves, certainly people's positions may change. The question requires a lot of reading tea leaves.

If there are no dramatic shifts, and everyone on the Court holds similarly to how they did in prior cases, the composition of the Court should make no difference, and I certainly hope it wouldn't. The position we're asking- in liberal versus conservative terms- is about as conservative as it gets. We are asking the Court to follow what the Constitution actually says: unless habeas corpus has been suspended by Congress, a defendant accused of a crime by the government gets a trial by jury. One need look no further to Justice Scalia's dissent in the Hamdi case.

One of the Constitution's goals is to set forth that the President has specific and limited powers. If you change the balance in times of crisis, without proper authority to do so, you really have, as Judge Parker held in the Second Circuit (New York) court's decision on the earlier habeas corpus petition, a sea change in the Constitution.

The Talking Dog: Do you think that Judge Luttig's consideration as a possible nominee to the Supreme Court had any role in the Padilla decision?

Andrew Patel: I don't know. I would certainly like to think that it did not.

The Talking Dog: Are you aware of contentions that Judge Roberts was under consideration for the Supreme Court at the time he was involved in the Hamdan case, and some are contending it is improper?

Andrew Patel: I am aware that legal scholars have pointed out that there may be issues associated with Judge Roberts' participation in the Hamdan case under those circumstances, but not much more specifically than that.

The Talking Dog: Your co-counsel Ms. Newman suggested that the government continued to press the Padilla case because it does not have an "exit strategy". Do you have any thoughts on that? Do you believe that the President's political needs, particularly the need to keep the fear of terrorism at the forefront of the national psyche, is driving this case?

Andrew Patel: I agree with Donna's assessment that the Government does not have an exit strategy, certainly not one that they have hinted at the existence of. I tend to think that the reason they've pressed this hard is not so much to keep terrorism in front of the public. Indeed, this case is a poor vehicle for that. There are members of the Administration with a vision of the office of the President somewhat different from what the Constitution envisioned, which is to say, a chief executive which much more limited powers than the vast powers envisioned by the current Administration.

The Talking Dog: Let's turn to some of the specifics of the 4th Circuit ruling. As a preliminary matter, I note that the Court accepts the premise that Padilla took up arms against the United States and was returning to the United States with the intent to blow up apartment buildings (the "dirty bomb" accusation apparently gone), because it was stipulated as part of the summary judgment motion on the habeas corpus petition...

Andrew Patel: Stop right there. You're not the first person to ask this question, by the way. But the facts identified by the 4th circuit were not stipulated. In fact, we challenged most of the government's alleged facts in our motion papers. The only stipulation of facts we ever entered concerned the circumstances of Mr. Padilla's arrest, and no facts before that time.

The Talking Dog: Well, procedurally, let me see if I have this right. You moved for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, the party opposing the motion gets the benefit of all favorable inferences, and the court is to assume the truth of allegations that it can get evidence in support of... admissible evidence, I suppose...

Andrew Patel: Exactly. We challenged the extensive hearsay basis of the Government's case, and the Government just did not get to first base on its hearsay allegations. The parties did not stipulate to the facts that the 4th Circuit identifies. Read in the best light, the court may have been inartful in calling the facts "stipulated", when what they should have said was "reading the facts in the best light in favor of the opposing party as required by Rule 56".

The Talking Dog: Am I correct that as the Circuit Court reversed and thereby threw out a summary judgment motion, it hasn't thrown out the case. Technically, the case goes back to the District Court in South Carolina for a trial on these fact issues and further proceedings, correct? Isn't that one of your options?

Andrew Patel: That's right. That's one of the options here, though, we will likely be seeking Supreme Court review.

The Talking Dog: In reading the decision, I was struck with the premise that the term "enemy", which I always understood to mean a distinct nation state or group of nation states, has been morphed now into what amounts to a private criminal enterprise, "Al Qaeda", as if we could have "a war" against private institutions (rather than a police or law enforcement action against the individuals respond). The metaphor seems to have eaten the reality. My questions are
(A) Are you aware of any precedent for arguing that private actors can have legally meaningful "wars" declared on them by the United States (I'm thinking of perhaps the Barbary Pirates, although even there Iím wondering if there was a state actor or two involved from the shores of Tripoli... Or for that matter, Pancho Villa who we chased to the halls of Montezuma...) And
(B) Have you argued that the Al Qaeda terrorist actions are, albeit large scale, nonetheless still private criminal activity, and unlike the basis of the Quirin case, NOT A WAR AT ALL, which is a distinction from that line of cases...?

Andrew Patel: Yes. We argued that fairly extensively in the earlier proceeding in New York. We did not stress that so much in the current proceeding, because we concluded it was unnecessary for the court to get bogged down in the "is this a war" question to decide this particular case. The military law scholars do conclude that it is possible for someone who is not a state to be treated as a combatant in limited conditions under the law of war, conditions not applicable here by a long shot. What I find particularly interesting is that the 4th Circuit based their decision entirely on statutory interpretation. It made no other discussion of suspension of the writ of habeas corpus, or of the Non-Detention Act, or of the law of war. None of that is there.

The Talking Dog: The 4th Circuit relied extremely heavily on the cases of Hamdi vs. Rumsfeld, relating, of course, to another unlawful combatant associated with the "War on Terror", albeit a citizen seized on or near an Afghan battlefield, and Ex parte Quirin, which deals with German saboteurs captured on or near Long Island as I recall during World War II. Both of those cases seem to indicate that the Supreme Court tacitly approved, as a general matter, of the President's ability to hold enemy combatants during the pendency of hostilities. I realize you have done it over and over, but for rhetorical purposes, how would you, for the benefit of laymen, distinguish those cases in a nut shell (realizing that things that can be put in a nutshell probably belong there)?

Andrew Patel: Well, in Quirin, there were two sets of German saboteurs, one landed in Long Island and the other in Florida, eventually arrested in New York and Chicago...

The Talking Dog: Just like Jose Padilla! So the two situations are therefore identical!

Andrew Patel: Well, going back to your question, let me address Hamdi first. There, the Court went out of its way to explicitly state that it was deciding a very narrow question: the authority of the President to detain someone captured on a foreign battlefield-- a foreign battlefield, which Chicago is not... even if it were a battlefield.

In Quirin, the issue is whether the President could capture and detain enemy soldiers for trial by the military, rather than for detention, forever, as in the Padilla case. Detention is not a lesser included element of trial. In a trial, someone must actually prove something, either the prosecution proving guilt or at least the defense proving innocence, and affording some manner of rights to the accused in doing so. Detaining someone forever is a very different matter. So the real issue in Quirin is different-- military jurisdiction. Not a question of who was going to HOLD them, but a question of who was going to try them, and on the facts of Quirin, the military had jurisdiction. On the facts there-- which unlike here WERE stipulated, the saboteurs landed, and wore uniforms at the time of their landing or thereabouts, thereby asserting their military status. In uniform, a soldier in the field under the laws of war has belligerant immunity, and cannot be prosecuted as a civilian criminal for that conduct. If a soldier in uniform is captured, then he or she becomes a prisoner of war. If a soldier violates the laws of war, interestingly, they are prosecuted in civilian courts, as opposed to a service-related offense, which is subject of a court-martial.

In Quirin, the prisoners' uniformed status at one time, and then, their later actions, gave the military the authority to try them. Padilla never asserted military status. There is absolutely no basis under Quirin for military authority over him.

The Talking Dog: Let me ask you, as an aside, if you have any objection to Padilla being afforded the hearing as to whether he is properly held as an unlawful combatant as created by the Supreme Court in Hamdi, or if you have a problem with that hearing?

Andrew Patel: We won't talk about judicial activism in creating such a hearing... The problem with the Hamdi hearing is that no one knows what it is. No one knows if it complies with due process under American civil law-- or the law of civilized nations. The Constitution provides for punishment after a trial. The Hamdi hearing is not a remedy that has ever been used before. There really is no way to assess this, and it is certainly not what the Constitution set forth.

The Talking Dog: Turning to the first of four points in the 4th CIrcuit decision as I read them (the four being the Court purportedly addressing your arguments) (1) the President's authority to detain captured combatants at all, when they are U.S. citizens, (2) the detention is improper because criminal prosecution is available, (3) Congress authorized the President to detain anyone, including citizens, in a resolution passed shortly after September 11th, and (4) that the case of Ex parte Milligan precludes this detention, because that case from the Civil War precludes the President from detaining any citizen for trial by the military while civilian courts were open.
As to the first one of these, the President's authority, I am wondering about footnote 4 to the Circuit's opinion ["Padilla also argues that the locus of capture should be legally relevant to the scope of the AUMF's [Congressional Authorization for the Use of Military Force] authorization because there is a higher probability of an erroneous determination that one is an enemy combatant when the seizure occurs on American soil. It is far from clear that this is actually the case. In any event, Padilla's argument confuses the scope of the President's power to detain enemy combatants under the AUMF witht he process for establishing that a detainee is in fact an enemy combatant, Hamdi itself provides process to guard against the erroneous detention of non-enemy combatants. 124 S.Ct. at 2648-52] . In other words, I'm wondering how you respond to the Court's finding that the Hamdi case says its ok for the President to detain a possible enemy combatant under these circumstances and he can challenge the detention at a Hamdi hearing (whatever that is) so what's the big deal?

Andrew Patel: The Constitution contains something called "the treason clause". Taking up arms against this country requires a heightened burden of proof on the part of the accuser, not a lower one. Our Founding Fathers were very wary of treason and its potential for abuse. Indeed, the only crime defined in the Constitution is treason, which is termed (I'm paraphrasing) making war or giving comfort to the enemy. In short, the constitution requires a higher standard of proof to prove what Mr. Padilla is accused of, i.e. treason. The Fourth Circuit is simply deciding that by calling the conduct something besides treason, that the Government can evade the requirements of the Constitution.

We know that a uniformed combatant would become a prisoner of war, and a saboteur not in uniform would be charged as a civilian.

Somehow, goes the Fourth Circuit's and the Government's thinking, the criminal justice system is inept and powerless to deal with the likes of a Mr. Padilla. Of course, we have a very robust criminal justice process- indeed, it was civilian law enforcement officers who captured and detained Mr. Padilla in the first instance-- the military had nothing to do with capturing him!

The Talking Dog: A similar point was made by Josh Dratel, when I interviewed him: far from being worthy of mockery, it was the law enforcement process that led to some of our best, if not only, knowledge of Al Qaeda and its operations.

Andrew Patel: Indeed, the Southern District of New York had a number of terrorism cases, even predating Al Qaeda, There were law enforcement people with lots and lots of knowledge of Al Qaeda. Of course, I later learned that a lot of law enforcement units with tremendous expertise in this area were not kept intact. Having been involved in earlier terrorism related trials, let me just say that this astounded me.

The Talking Dog: Turning back to the 4th Circuit's holding, as to the second one of these points in the 4th Circuit's holding, given that formal criminal prosecution was available to the Quirin detainees, I'm wondering how you respond to that part of its holding... in other words, the government chose a military trial (preceded by detention) of the defendants there, even though the civilian courts were available? What do you say to that?

Andrew Patel: Padilla never formally took up arms or went into uniform. The Supreme Court held that on those facts and those facts alone-- the taking up of arms and wearing of uniform-- the Quirin defendants fell within military jurisdiction. There has been no lack of criticism of the Quirin decision. Indeed, in his dissent in Hamdi, Justice Scalia said that Quirin was not the Court's best day.

Historically, no one would argue with a straight face that the military trials of President Lincoln's alleged assassins were properly or lawfully conducted, or even legal at all.

Quirin is not on all that much greater footing.

In historical context, the late Chief Justice Rehnquist wrote a book on civil liberty in a time of war... "All the Laws but One", referring to Lincoln's decision to suspend habeas corpus during the Civil War. In Rehnquist's book, he observed that the record of the Court is just horrible when the country finds itself in just dire straights. The Court has often handed the executive branch far broader authority than it needs, in these circumstances. As things return to a normal state, the Court then states "we didn't really mean it..." (and we wouldn't do that again...")

In deciding our case specifically, the Court was not making wonderful habeas law. But there are times when we as a nation need some time. My client is a United States citizen, sitting in a jail indefinitely, unsure of the day he will see a courtroom, let alone the light of day. It is hard to be patient under such circumstances.

The Talking Dog: As to the third point (relying on Congress's Use of Force Resolution) I tend to think that the Court was on thinner ice... Congress cannot, by statute, fiat, resolution or otherwise override the Bill of Rights (or so we all foolishly thought). Rather than a "clear statement" from Congress, I am wondering if the critical distinction and issue on this wasnít actually the fact that for Quirin to attach as meaningful precedent, an actual, formal declaration of war against a specific enemy nation, rather than a vague pronouncement of "force necessary" to prevent future attacks, was required... In other words, this gets back to my original point... are we not, essentially, stretching the holdings beyond the breaking point by having a court declare what amounts to, whether called it or not, a law enforcement action by the military, against a private, by definition non-state criminal group, elevated to a war, and then elevating a rather vague declaration by Congress to prosecute that law enforcement action? Would you find "Orwellian" to be an apt description for what the Court is holding here?

Andrew Patel: Obviously, every nation has a right to act in its own self-defense. As to our sending troops to Afghanistan, there is no serious scholarly debate that the action against the Taliban and Al Qaeda there was not an act of national self-defense. And Congress authorized that action.
Morphing that specific authorization into an undefined blanket authorization for an unlimited international war against terrorism, and then using Quirin to validate extra-judicial detention, shows us the danger of straying from the plan. The Constitution is that plan-- the outline of our government. When we stray from it, we do not serve anyone well.

The Talking Dog: I think the final point is by far the most troubling aspect of the Court's decision (at least to me). The 4th circuit attempts to distinguish the Milligan case by contending that the detainee there, Mr. Milligan, was associated with "a secret society" somehow distinct from the Confederate Army, which was "the actual combatants". Of course, one might argue that, in this case, the "combatants" were the arguably illegitimate Taliban government, which we have toppled, and by analogy, the Al Qaeda criminal organization was the equivalent of a CIVILIAN "secret society" as in Milligan. Again, I wonder if you find that to be at all a meaningful distinction, and how you would argue that it is not a meaningful distinction (other than in terms of Orwellian verbiage, perhaps)?

Andrew Patel: I found the plurality opinion in Hamdi by Justice O'Connor and the Court's willingness to overlook the Milligan case to be... troubling. Milligan is a magnificent piece of work. The Fourth Circuit's decision is continuing the earlier harm we talked about-- that is a sad day.

Milligan talked about the basic rights we have to the process of law.
We look forward to the day our client is INDICTED... we ASPIRE to a federal indictment, and have argued that. As a defense attorney, of course, we usually try to avoid that (or at least, minimize its impact once it happens).

Whenever you have a court make constitutional rights optional, it weakens all of us. If a criminal prosecution is just a matter of presidential discretion, then where do you draw the line? For example, does the freedom to practice a religion an elective? Can the President tell all business that you must display a crucifix in your store, because he has determined it necessary?

Once you go down this uncharted path, you do not know where it will end. We need to get off of it, now. It may be seemingly convenient to give the President these kind of powers, but does it really make us any safer? Does this make sure that the rights of liberty and freedom that American people have died for are protected? Frankly, we denigrate the memory of those who died to preserve our freedom by doing this.

The Talking Dog: I believe I recently heard Judge (now Chief Justice) Roberts say at his confirmation hearing, when asked about his decision in Hamdan, I believe, that "the Constitution is not a suicide pact", and words to the effect of in this time of war and national crisis, we must give the President extraordinary powers to combat the current unique and extraordinary threat that we face. How would you respond to that kind of sentiment?

Andrew Patel: Well, my response to such a sentiment is "shame on you". Someone with that sentiment does not believe in the strength and vitality of our constitutional process. The Constitution is itself a magnificent plan, and it has been so rarely amended (and even one of those amendments was reversed by another amendment!) The people who wrote the Constitution were well aware of what it meant to have the nation's existence threatened.

They did envision extraordinary circumstances-- but they limited the power only to Congress-- Congress and not the President-- to suspend habeas corpus-- and only- ONLY-- in the event of invasion or insurrection. The framers of the Constitution fought and died for the process. They did not put an "extraordinary powers in the President" rule in the Constitution. We should not so quickly make short work of the Founding Fathers, who knew what they were doing.

There are ironies here. Many are willing to quickly give up freedoms. It is ironic that it was almost 200 years to the day before 9-11 since a foreign enemy soldier had set foot in this country proper. It was not surprising that there was a panic reaction. I think we need to take a step back. We can, as a people, deal with this. We are more than the sum of our fears. A difficult situation is no reason to re-write the very basis of how we deal with crises.

Terrorism is a term now thrown around very loosely. Those dealing with it a long time, such as myself in my criminal defense legal practice, understand it. Terrorism is not mass destruction. It is political crime. It is crime designed to achieve political change. The motivation for it is political in nature.

Looked at that way, if we do end up changing the way we live our lives and run our laws because of the terrorists, have they not achieved their goals?

The Talking Dog: Is there anything else you think my readers should be aware of with respect to Mr. Padilla's case, or anything else you have learned in the course of this representation that you think we should know?

Andrew Patel: There is some good news. Members of the United States military are extraordinary and honorable people and we should be proud that they have chosen to defend us with their lives and taken an oath to do so. One of the eye opening things for me personally has been becoming familiar with military law and working with our own military. I have come to have tremendous respect for the servicemen and service women with whom I have worked. They have taken an oath to defend the entire Constitution, not just Article 2 (that gives power to the Executive Branch). And they are prepared to make the ultimate sacrifice, and we are very fortunate that we have men and women like that. This is not what you'd necessarily expect from someone whose client is held by the military. It is no small significance that the loudest opponents of the torture memoranda were the Judge Advocate Generals (the military lawyers).

The Talking Dog: Mr. Patel, I enjoyed that immensely, and I have no doubt my readers will enjoy reading it. You have been most generous with your time, and I thank you.

My interview with co-counsel for Mr. Padilla Donna Newman is here, my interview of attorney for "Australian Taliban" and Guantanamo Bay detainee David Hicks Joshua Dratel is here and my interview with attorney for alleged OBL's driver and Guantanamo Bay detainee Salim Hamdan (in whose case the Supreme Court has just granted review) Neal Katyal, is here.


Your interview was linked by a few blogs, but not your web page. So if you see lots of hits for this entry but no comments to it, that may be the reason why.

BTW, excellent interview and article.

Posted by union at January 6, 2006 5:48 PM

Excellent interview, indeed. Love the short autobio, as well. I passed the interview and site address on to a couple of friends who teach high school government classes. Thanks so much.

Posted by kenny at January 6, 2006 6:18 PM

I would like information on the conditions under which Mr. Padilla has been held? Can he see another human? If not, has he essentially been without human contact for 3 years?

Posted by Charles Gillis at January 6, 2006 10:47 PM