Pacific Views

'Dirty bomber' turns into a bit player.

And a critical constitutional question — that of whether Dubya or any other US president can order a citizen held indefinitely and without charges — remains undecided. Or, as some hold, worse than undecided.

Faced with a looming deadline in a Supreme Court case that could have decided whether Dubya has the legal power to hold as 'enemy combatants,' the feds earlier this week decided to finally charge Jose Padilla with a specific crime.

In taking this change of direction, however, the Justice Department has given up on its portrayal of Padilla as a hard-core al-Qaeda loyalist who planned to set off a 'dirty bomb' in a US city. Instead, this dangerous man has been reduced to being a minor player in the schemes of others to support Islamic terrorists outside the US. Those four others were indicted last year on conspiracy to further murder and kidnapping outside the United States and to provide material aid to terrorists; and with directly providing material aid to terrorists. Padilla faces the same charges, but is now being portrayed as a sort of terrorist wannabee and gofer.

According to a story earlier this week from Knight Ridder's Washington Bureau, the change in the government's approach to dealing with Padilla is another example of how Dubya's administration talks big about its summary powers of detention, but shies away from any Supreme Court test of those powers — in part because a Supreme Court hearing of the issue could expose matters that the administration would rather keep secret.

Scott Silliman, an expert on national security law at Duke University, said the administration's decision on Padilla "clearly is an exercise in damage control to avoid an adverse legal decision."

There's still a chance that the Supreme Court could take the Padilla case to settle the issue, but Silliman said that was unlikely. Attorney General Alberto Gonzales said the case before the court is now "moot."

"The pattern is they look for ways to minimize the legal challenge in these cases," Silliman said.

The administration also avoids other difficult issues by prosecuting Padilla on charges different from the allegations that led to his enemy combatant status.

One is the use of statements he might have made while in military custody with almost no access to a lawyer. A judge might rule such statements inadmissible at trial. Justice Department officials said the charges filed Tuesday won't require them to use Padilla's statements.

Another is that Tuesday's charges won't involve al-Qaida members who've been subject to harsh interrogation techniques while in custody.

One Guantanamo detainee, Mohamed al-Kahtani, who was subjected to harsh techniques, "clarified Padilla's relationship with al-Qaida," the Defense Department said in June. Al-Kahtani's interrogation at Guantanamo prompted an FBI agent there to complain about his treatment.

The feds' decision to charge Padilla doesn't just avoid a Supreme Court decision on the question of a president's power to hold citizens indefinitely, without charges. It also leaves intact a decision by the Fourth Circuit Court of Appeals that Dubya can indeed hold Padilla or other citizen as an 'enemy combatant.' As Jack Balkin points out, this is not good:

That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. [Go here for a map showing which states are in the 4th Circuit.] The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.

The lack of a Supreme Court ruling on the question of 'enemy combatants' poses even broader problems. According to former civil liberties litigator Glenn Greenwald, the power claimed by Dubya's administration threatens the very foundations of a democratic state.

Critically, the Administration has not just decreed that they have the power to imprison U.S. citizens without due process, but they are actively exercising this power. No matter how many times one says it, it never ceases to amaze and disgust: There are two U.S. citizens (that we know of) — Jose Padilla and Yaser Esam Hamdi — who have now spent years languishing in military prisons, put there by a U.S. Federal Government which has refused to even charge them with a crime. They have been kept in solitary confinement and, worse, imprisoned indefinitely, for months even denied the right to speak with any lawyers.

In short, these citizens have been living a totalitarian nightmare which truly does define "tyranny." That word is often overused as political hyperbole, but if it means anything, it applies to a Government that has the power — and which uses that power — to imprison its citizens indefinitely without having to prove that they committed any crime. Having the President have the unchecked power to order the indefinite imprisonment of American citizens without any of these protections simply is the surest sign that the Government is acting tyrannically. If that isn't definitive proof of tyranny, what is?

There is currently debate taking place — spawned by the odious Amendment sponsored by Sen. Lindsay Graham — as to whether non-citizen battlefield combatants who are imprisoned by the U.S. Government at Guantanamo and elsewhere ought to have the right to access to our federal courts in order to bring habeas corpus petitions asking to be freed on the ground that they have been wrongfully imprisoned. And many have noted the profound dangers of denying any individuals, including non-citizen combatants, this critical right to challenge their incarceration in a judicial forum.

But in the Padilla case, and in the case of Hamdi, we are talking about American citizens who have been imprisoned for years now by the U.S. government without any due process of any kind. This should be beyond the pale of debate. It should be unthinkable in the United States for this to occur, and the fact that it is not just occurring, but has the support of the Administration and its slavish enablers, shows just how far we've traveled — or, more accurately, how far we've fallen — with regard to our individual liberties under this Administration.

We are not talking about new or modern or exotic liberties here. The right not to be imprisoned in the absence of due process is a right that was not just recognized upon the Founding of the country, but was one of the first liberties established by 13th Century England when British subjects rejected the notion that the King had absolute, unlimited powers and forced King John to accept the Magna Carta. That 13th Century liberty is what has been abrogated by this Administration.

Greenwald has much more to say about this subject. We highly recommend reading his entire post, and this later post.

Posted by Magpie at November 24, 2005 03:51 PM | War on Terrorism | Technorati links |