May 8 marked the third anniversary of the imprisonment of Jose Padilla. Padilla was apprehended at Chicago’s O’Hare Airport in 2002 by Federal officers under the shaky “material witness” provision and trundled off to prison. In a conspicuous effort to poison public opinion, Attorney General John Ashcroft announced on national TV that Padilla was conspiring to set off a “dirty bomb” (radioactive device) within the United Sates. To date, the government has never produced any evidence to corroborate their spurious claims. In all probability, Padilla may be entirely blameless.
Jose Padilla represents the crowning achievement in the war on terror. As the situation in Haiti and Afghanistan steadily deteriorates, and as America’s eight divisions continue to bog down in the Iraqi quagmire, the administration’s one unassailable accomplishment is the deathblow it has delivered to the Bill of Rights. Padilla now faces his 4th year of captivity without any formal charges filed against him and without any reasonable expectation of defending himself in a court of law.
Happy anniversary, Jose.
The government defends its detention of Padilla on the grounds that he is an “enemy combatant”. The term “enemy combatant” means “presumed guilty” and its application to US citizens or foreign nationals allows the state to operate outside the confines of international human rights law and the Bill of Rights. Simply put, it is the end of the rule of law in America and a rejection of a legal tradition that dates back 800 years. Most likely, the phrase originated in a right-wing think tank as a way of dealing with potential enemies of the state while ignoring the law. In fact, it has no legal meaning, but its use assumes that the president has the authority to conduct the war on terror however he sees fit, using “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided terrorist attacks”… or, in order, to “prevent future acts of international terrorism.” (Congress, Joint Resolution Sept 18, 2001) The Bush administration believes that this empowers the president to strip citizens of their constitutional rights and detain them without charges. So far, the courts have failed to stop this disturbing overreach of executive power.
When Padilla’s case appeared before the US District Court, Judge Henry Floyd disputed the administration’s defense of the “enemy combatant” label saying, “If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem.”
Indeed, it’s not the purview of the president to invent laws as he goes along, but to “preserve, protect and defend the Constitution of the United States.”
The moniker “enemy combatant” creates the greatest constitutional crisis the nation has ever faced. It undermines the principle of “inalienable rights” by allowing the president to pick and choose who is entitled to the benefits of citizenship. More importantly, it presumes that suspects have no right to challenge the terms of their detention through access to the legal system. The media breezily refers to the plight of enemy combatants as “legal limbo. It is not limbo, it is despotism.
In Justice John Paul Stevens scathing dissent (to the Supreme Court’s refusal to hear the Padilla case) Stevens articulates the gravity of Padilla vs. Rumsfeld. He said the Padilla case poses “a unique and unprecedented threat to the freedom of every American citizen…At stake is nothing less than the essence of a free society…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.”
Stevens is not exaggerating. The threat posed by placing our freedom in the hands of the president is incalculable. The Supreme Court’s refusal to hear Padilla’s case demonstrates its tacit support for the unlimited power of the president and its unwillingness to address whether Padilla is entitled to any protection under the Constitution. Their rejection condemns Padilla to indefinite detention and shows the world that they are incapable of meeting the requirements of their profession.
The Supreme Court is meaningless if it stubbornly refuses to clarify even the most fundamental points concerning constitutional protections and personal liberty. (The court would not even rule on Padilla’s habeas corpus petition, that is, whether he can be kept in jail without being charged with a crime)
In his brilliant article “The Supreme Court and Enemy Combatants,” Marc Norton notes a critical opinion written by Judges Rehnquist, Kennedy and O’ Connor (joined by Breyer). Norton says, “The key finding by this gang of four is to uphold the concept of enemy combatants, for citizens and non-citizens alike. ‘There is no bar to this nation’s holding one of its own citizens as an enemy combatant,’ they boldly declare.”
No bar to holding a citizen as an enemy combatant? What is the Bill of Rights if it is not a bar to the arbitrary power of the state? The court’s finding is a clear vindication of Bush’s power-grab and the court’s culpability.
Readers should carefully consider Norton’s quote and judge for themselves whether it is consistent with any reasonable interpretation of the Bill of Rights. If the Court majority is willing to overturn the inalienable rights of its citizens and confer absolute power on the executive, the task before us is to remove the erring jurists on the court.
When Justice O’ Connor issued her blistering statement that, “A state of war is not a blank check for the President,” it was slapped on the front page of every newspaper across the nation. Unfortunately, there’s not a word of truth in O’ Connor’s declaration. The high court cleared the way for Bush to summarily disregard the due process rights of citizens according to his own discretion. By endorsing (in principle) the enemy combatant label, the court removed the guarantees of a speedy trial, the right to confront ones accusers, the right to produce witnesses for one’s defense, the right to an attorney, the right to challenge the terms of one’s incarceration, and the right to an impartial jury of one’s peers. All of these protections are inserted into the Bill of Rights for one reason alone; to establish the procedures that make it impossible for the government to do what Bush has done to Padilla. The provisions (in the Bill of Rights) are expressed in clear, unambiguous language so the state cannot rob citizens of their freedom without just cause and hard evidence… “nor be deprived of life, liberty or property without due process of law.” (5th amendment)
“Without due process of law”!
Padilla is innocent, a random victim of government-demagoguery and public hysteria. Even if the allegations were true, it wouldn’t make a bit of difference. The terms of his imprisonment have never been justifiable and he should be released without delay. His continued incarceration (in a 5 by 7 foot windowless cell in Norfolk, VA.) is an affront to a nation that claims to be committed to human rights, civil liberties and the rule of law.
The Bush administration has no interest in Jose Padilla, a hapless gang-banger caught up in the 9-11, anti-terror dragnet. It’s the precedent that’s paramount, the go-ahead to toss citizens in jail at the whim of the president and to dispose of enemies without recourse to the law.
The path to tyranny is paved with the language of tyranny. The intrusion of “enemy combatant” into our jurisprudence obliterates the ideals of constitutional protections and inalienable rights. Jose Padilla is just a minor player in this much grander scheme.
We value the law because it protects the very least among us by putting a wall between ourselves and the long-arm of the government. Bush’s actions have removed that wall and put every one of us within the grasp of the all-powerful state.
Free Jose Padilla!
Mike Whitney lives in Washington state, and can be reached at: firstname.lastname@example.org.
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