When a federal district court ruled last week in favor of President Bush in the case of Jose Padilla — the only American imprisoned as an â€œenemy combatantâ€ by Presidential order — it struck a major blow at the Constitution, upholding actions by the administration which Supreme Court Justice John Paul Stevens has said â€œcreated a unique and unprecedented threat to the freedom of every American citizen.â€
Padilla was a Puerto Rican kid born in New York City who had drifted from New York to Chicago to Florida, always with the law close at his heels, and who had converted to Islam (and taken the name Abdul al Muhajir) while in jail. His arrest in May 2002 was announced with huge media fanfare by Attorney General John Ashcroft in a press conference broadcast by satellite fromâ€¦Moscow! With Bushâ€™s Justice Department under criticism for having failed to make any major arrests of terrorists (at a time when foreign governments from France to Morocco were rolling up Al Qaeda – related networks), the traveling Ashcroft interrupted his Russian visit to proclaim that the arrest of Padilla was â€œa significant step forward in the War on Terrorism. We have captured a known terrorist who was exploring a plan to build and explode a radiological device, or â€˜dirty bombâ€™ in the United States.â€ Within minutes of Ashcroftâ€™s press conference, the all-news cable networks were running scary pictures of mushroom clouds.
Shortly after the arrest, President Bush issued an executive order designating Padilla an â€œenemy combatantâ€ and ordered him locked away in a military brig in South Carolina — where he has languished since in a windowless, 5 by 7 foot cell that is always brightly lit — without an indictment, a trial, or access to a lawyer. A coalition of civil liberties groups from left and right — from the ACLU to the libertarian conservative Cato Institute — eventually filed a habeas corpus petition on Padillaâ€™s behalf. As the Cato Instituteâ€™s senior Constitutional scholar, Robert Levy has written, â€œAn unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing.
More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, â€˜No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.â€™ Today, we have not had from Congress any statute that authorizes Padilla’s detention.â€ And indeed, the federal Court of Appeals in the Second District in New York City, after hearing the civil liberties groupsâ€™ case, ruled that Padillaâ€™s detention in communicado and without trial was illegal and un-Constitutional.
But the Bush administration appealed that ruling to the Supreme Court. A majority of five Republican Supremes, led by the late Chief Justice William Rehnquist — while refusing to rule on the merits of the case to free Padilla — declared that the Second District had no jurisdiction, and ordered that the case be heard by the Fourth Circuit Court of Appeals in Virginia, which has jurisdiction over South Carolina, where Padilla is locked away. The Court ruled that Padilla improperly named Secretary of Defense Donald Rumsfeld as the Respondent, instead of the warden of the military brig where Padilla is held.
This was pure jurisdiction-shopping by the Rehnquist court, and moved the case from the liberal New York City court to the infinitely more conservative Virginia bench headed by Judge J. Michael Luttig — whom the press reported last week was on Bushâ€™s short list for a Supreme Court vacancy. Upholding Bushâ€™s power to throw any American citizen into prison — as if this president were the Czar of feudal Russia — was certainly a convenient way for Luttig to recommend himself to fill Sandra Day Oâ€™Connorâ€™s Supreme Court seat.
The case against Padilla as an â€œenemy combatantâ€ has always been extraordinarily flimsy, and based almost entirely on circumstantial evidence. Padilla had been in Afghanistan, and had apparently frequented the Taliban — but there is no evidence that heâ€™d ever fired a single shot at U.S. troops. As the Taliban collapsed, Padilla fled to the northeast corner of Pakistan, carrying a weapon (this frontier province is a particularly violence-ridden section of Pakistan, and anyone who goes there without a weapon to defend themselves is taking their life in their hands.) But Padilla arrived in the U.S. with no bomb-making equipment or how-to manuals and had no concrete plan to plant a bomb anywhere. An Al Qaeda figure — Abu Zabaydah, a supposed deputy to Osama Bin Laden — had been wounded and captured in a firefight, and soon began spinning tales to his U.S. captors.
One of them concerned an American whoâ€™d offered to build and detonate a dirty bomb in the U.S. But Zabaydahâ€™s information frequently proved unreliable — some of his interrogators thought heâ€™d been spreading disinformation — and in any case he never named Padilla., although federal authorities jumped to the conclusion that the supposed volunteer bomb-maker was the Puerto Rican convert to Islam.
. Newsweek reported that federal authorities said that they hadnâ€™t found any of Padillaâ€™s alleged â€œterroristâ€ contacts in the U.S., and one federal official said that Ashcroftâ€™s portrait of Padilla as the key man in a plot to decimate an American city with a dirty bomb â€œwas blown way out of proportion.â€ And Time magazine commented at the time that, â€œThe fact that the authorities arrested Padilla immediately on his arrival in Chicago rather than following him around in the hope that he would reveal al-Qaeda operatives already on U.S. soil says volumes about how little Padilla may have known about the organization.â€œ Morever, Padilla — a former Taco Bell employee — didnâ€™t have the technical education necessary to fabricate a dirty mini-nuke.
Defense Secretary Donald Rumsfeld has said of Padilla, â€œWe are not interested in trying him at the moment. We are not interested in punishing him at the moment. We are interested in finding out what in the world he knows.” Thatâ€™s a cute way of avoiding the truth: that the federal government was afraid of bringing Padilla to trial with a case so gauzy that a jury might well say, â€œIs that all youâ€™ve got?â€ and let him go. And what, if anything, the government has learned from Padilla during his four years of detention in isolation — conditions that amount to psychological torture — it hasnâ€™t said.
Why is the Padilla case so important? Because the right to freedom from arbitrary detention and to a jury trial is one of the fundamental rights for which the American Revolution was fought — it is enshrined in our Bill of Rights. As Thomas Jefferson wrote to Tom Paine in 1789, â€œ”I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Imprisonment without trial is one of the ways in which the U.S. (through its annual State Department reports on human rights around the world) measures a countryâ€™s degree of despotism. Bush has asserted his power to keep Padilla in jail â€œuntil hostilities are endedâ€ — but, since Bush has also proclaimed the struggle against Al Qaeda as one without any end it sight, Padilla could rot in prison for twenty years or more.
Now the Padilla case will be appealed to a new Supreme Court, — presided over by certain-to-be-confirmed conservative Chief Justice John Roberts — and by the time it gets to the Supremes Bush will have named a new associate justice for the vacant Oâ€™Connor seat, giving conservatives a lock on the court for the next several decades. Padilla will be among the first victims of this new Bush Court.
But in his astonishingly vigorous dissent when the Supreme Court first ruled against the Padilla appeal, Justice John Paul Stevens (with Justices Souter, Ginsburg, and Breyer concurring) wrote:
â€œUnconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizensâ€¦ may not be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.â€