Donald Caster beat me to the punch with this excellent post on whether the indictment against Jose Padilla should be dismissed because of the government's pre-indictment delay. I don't think it will be,* but I think it should be. After all, the government did the following:
- lied to the courts and American public when it said it did not have - and could not obtain - the evidence it needed to indict Padilla;
- held Padilla for years without giving him meaningful access to counsel or the evidence against him, thereby preventing him from discovering evidence needed for his potential defense;
- forum shopped by having Padilla held in the Fourth Circuit, knowing that the Fourth Circuit would be the only forum activist enough to uphold his detention;
- held press conference after press conference where prosecutors asserted that Padilla was the "dirty bomber," thus making it impossible for Padilla to have a fair trial;
- indicted Padilla only after the Supreme Court agreed to review the Fourth Circuit's activist ruling, and after it became apparent that the Fourth Circuit's ruling would not stand.
In other words, the only reason for the pre-indictment delay was this: The government had to wait and see whether it would get an unfavorable court ruling on Padilla's detention. That's it. They had the evidence, they had the resources, they had the man. There was no good reason not to charge him. See Caster's post for more.
*The trial court will likely say, "While the government's litigation strategy was perhaps less than wholly admirable, the statute of limitations for the underlying offense had not expired. Therefore, dismissal under a pre-indictment delay theory is unwarranted." (Yes, it makes no sense that the modern approach is to tie a pre-indictment-analysis with the statute of limitations, since a stutute of limitations is a creation of postive law; where as pre-indictment delay is grounded in the Due Process Clause. But them's the breaks.)