US argues harsh treatment shouldn't undercut Padilla case

He adds, "Even if this court were to believe all of the unsupported allegations in Padilla's motion and thereby concluded that he suffered 'shocking' due-process violations during his military detention (a claim the government disputes emphatically), dismissal of the indictment would nevertheless be unwarranted as a matter of law."

Killinger says the correct remedy for Padilla would be to sue his military interrogators in federal court for civil damages, or to seek government prosecution of the alleged torturers. But Killinger says that Padilla "is not entitled to a free pass from his own criminal conduct."

At issue in the defense motion and the prosecutor's reply brief is what standard the court should apply in assessing whether the government acted so outrageously in its treatment of Padilla that the case must be dismissed.

While the facts of Padilla's harsh treatment (if accurate) favor the defense, existing legal precedents favor the government.

The 11th US Circuit Court of Appeals, which covers Miami, has been reluctant in the past to dismiss cases based on allegations of outrageous government conduct. Appeals court judges in the First, Sixth, and Seventh circuits have gone even further, declaring that the outrageous government conduct defense does not exist, according to the prosecutors' brief.

Defense lawyers began their argument in their brief not with a quote from a learned legal scholar but instead from philosopher Friedrich Nietzsche. "Whoever fights monsters should see to it that in the process he does not become a monster."

Padilla's lawyers acknowledge that outrageous government conduct motions are rarely justified, and thus rarely granted. But they add: "The treatment of Mr. Padilla, a natural born citizen of the United States, is a blot on this nation's character, shameful in its disrespect for the rule of law, and should never be repeated."

Prosecutors say Padilla was lawfully detained by the military as an enemy combatant and that no information obtained during his interrogations will be used as evidence against him at his trial.

Analysts who closely follow the case say the torture allegation is a potential blockbuster. "I think the judge is going to take a real serious look at whether this case should go forward or not," says David Oscar Markus, president of the Miami Chapter of the Florida Association of Criminal Defense Lawyers. "This judge has shown that she is not just going to roll over for what the government says. She's already dismissed some counts in the indictment and she is looking at what they have done very seriously."

Mr. Markus says the lack of existing legal precedents supporting dismissal may not matter in the Padilla torture issue. "There is no precedent for something like this because nothing like this has ever happened before," he says.

How the issue plays out from here may depend on whether Padilla's lawyers are able to present evidence of Padilla's torture in court, Markus says. Medical records from the Navy brig where Padilla was held in South Carolina could offer independent and reliable evidence of abuse, if he was provided medical care as the government claims.

"Padilla's conditions of confinement were humane and designed to ensure his safety and security," the government's brief says. "While in the brig Padilla never reported any abusive treatment to the staff or medical personnel."

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