Decisions, decisions

All right students, time for today's analytical exercise. Compare and contrast these two situations:

Decision One, from AP for Tuesday:

A federal judge has denied prosecutors' efforts to keep anti-Castro militant Luis Posada Carriles jailed pending his trial on charges he lied in a bid to become a U.S. citizen.

U.S. District Judge Kathleen Cardone ruled Friday that Posada, 79, should be released. Prosecutors immediately asked her to delay the order, but she refused the request late Monday.

Posada, a former CIA asset, is a known terrorist wanted in both Cuba and Venezuela for his role in the 1976 bombing of a Cuban airliner in which 73 people were killed. In fact, when the Department for the Security of the Fatherland made an interim decision to refuse to release him pending trial, the letter informing him of the decision included this:

You have a history of engaging in criminal activity, associating with individuals involved in criminal activity, and participating in violent acts that indicate a disregard for the safety of the general public and a propensity for engaging in activities proscribed within the provisions of INA § 212(a), that pose a risk to the national security of the United States. Further, you have shown a cavalier attitude towards the impact your actions have had on the safety and well being of persons and properly. Open source information and your own statements link you to the planning and coordination of a series of hotel and restaurant bombings that occurred in Cuba over a several month period in 1997.

He's also a clear flight risk with, prosecutors charged, "a demonstrated and recent ability to travel under cover and avoid detection" who has already been ordered deported. (The article falsely claims that he hasn't been deported because the US has been unable to find a country willing to take him. In fact, Venezuela wants him to be tried in the airliner bombing but the US refuses to send him there because in a sudden burst of tender concern it fears he might be tortured.)

But nope, nope, the judge says, he's got to go free pending trial. After all, it's only fair, right?

Decision Two, as reported by Reuters on Wednesday:

A U.S. federal court judge has refused to dismiss terrorism charges against alleged al Qaeda operative Jose Padilla who says he was tortured while held at a U.S. military brig for more than 3-1/2 years.

U.S. District Court Judge Marcia Cooke, in an order late on Monday, rejected Padilla's October 2006 motion for dismissal of the case due to "outrageous government conduct," clearing the way for the expected April 16 start of his high-profile trial.

Padilla was initially accused of plotting to detonate a "dirty bomb" - but in the years since his arrest, the charges gradually evaporated, leaving only the by-definition vague accusation of "offering material support" to "terrorists." When Padilla, a US citizen was arrested in Chicago in May 2002, he was labeled an "enemy combatant," setting off a legal battle that went to the Supreme Court - which, to its shame, punted on the narrow technical grounds that Padilla had filed his suit in the wrong federal court, making him start all over again.

After getting a favorable ruling in the Fourth Circuit Appeals Court, in November 2005 the Shrub team short-circuited a possible return to the Supreme Court by switching Padilla to civilian custody and saying he'd be tried in a civilian court.

But there was still that little matter of, uh, well, not to put too fine a point on it, but the torture to which he was subjected during the time he was in military custody and so was entitled, the Bushites insisted, to no legal rights at all. Torture including isolation and sensory deprivation so severe, with such debilitating effects on his mental status, that serious questions have been raised about his ability to even participate in his own defense. Short version: They broke him mentally.

"Hey, no problem" said Judge Cooke.

Cooke rejected the dismissal motion out of hand, saying it had no bearing on charges....

"Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment," Cooke said in her order denying the dismissal motion.

She did not dispute the claim that Padilla had been abused and tortured but said the argument for dismissal of the charges against him suffered from "numerous legal infirmities."

So yeah, he may well have been tortured but who cares? Because as we all know, "legal infirmities" are more important than human rights or government following the rule of law.

Footnote one: At least she's consistent: Last month, Cooke ruled that Padilla's constitutional right to a speedy trial had not been violated because the three and a half-years he was held in solitary confinement in a military prison did not count.

Footnote two: According to AP, the prosecution in the case plans to have a CIA agent testify in disguise and under a false name. Padilla's lawyers are protesting and Cook says she'll have a wrtten order. Gee, I'm on tenterhooks wondering which way she'll decide.

Footnote three: Despite its implications, our "paper of record" tossed off this Padilla story in a single paragraph.