Posted by: sean | November 23, 2005

Padilla’s indictment

Jose Padilla, an American citizen, was finally indicted yesterday in a criminal court. Padilla, who has been held as an “unlawful enemy combatant” in a Navy brig in South Carolina since 2002, was arrested in Chicago and accused of planning a “dirty bomb” attack on American soil. His indictment makes no mention of a “dirty bomb,” perhaps because any evidence gained while he was detained without recourse to a writ of habeas corpus would be inadmissable in court.

According to I. Michael Greenberger, a former Justice Department official who teaches law at the University of Maryland,

The indictment is doubtless a strategy by the Bush administration to avoid a Supreme Court ruling that would likely hold that U.S. citizens cannot be detained incommunicado as enemy combatants if they are detained on U.S. soil.

The US government had until today to turn in its legal arguments for a pending Supreme Court case, which was to examine Padilla’s status. Attorney General Gonzales claims, “Since he has now been charged in a grand jury in Florida, we believe that the petition is moot and that the petition should not be granted.” But this is not at all certain, since the change to the US criminal court system did not address his status as an “unlawful enemy combatant,” (a designation that is being used to hold other people indefinitely) and in a government request in 2002 to suspend a petition to habeas corpus, government lawyers make the following claim in a footnote:

There has never been an obligation under the laws and customs of war to charge an enemy combatant with an offense (whether under the laws of war or under domestic law). Indeed, in the usual case, the vast majority of those seized in war are never charged with an offense but are simply detained during the conflict. Nor is there any general right of access to counsel for enemy combatants under the laws and customs of war.

This implies that the government is talking about the “war on terror” and not the war in Afghanistan, because if they were talking about the latter, Padilla would have been released before now. Needless to say, this is disconcerting, because if the “war on terror” were to last as long as another metaphorical war, say the “war on drugs,” the “unlawful enemy combatant” designation would give the president the power to imprison anyone, even US citizens, for the rest of their lives without having to ever charge them with a crime.

As a matter of fact, the Supreme Court decision handed down by O’Conner in Hamdi v. Rumsfeld (Hamdi is an American citizen who was apprehended in Afghanistan during the war there) explicitly makes this point:

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

O’Conner then goes on to speak of the “constitutional balance” needed when weighing freedom and security:

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U.S. 144, 164?165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).

I’ve talked about this idea on a few occasions (here and here), and the prospect of an executive branch that has the power to indefinitely detain its citizens is indeed a frightening one. This is why it is important that the Supreme Court go ahead and hear the case, instead of letting the government cop out at the last minute. This is not unexpected, however, since rather than actually try Hamdi, the government agreed to let him go back to Saudi Arabia on the condition that he give up his American nationality.

So the government’s behavior in both of these cases is not only unconstitutional and contrary to the tule of law in general, it seems contradictory and counterproductive. If Padilla was really trying to build a “dirty bomb,” the prosecuter in his case cannot make that claim due to his unlawful detention. Likewise, if Hamdi is so dangerous, why let him go back to Saudi Arabia (of all places!) rather than give him a fair criminal trial? It’s important that the Supreme Court hear Padilla’s case regardless of the government’s last minute cop-out, if only to stress Justice O’Connor’s assertion that “…a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

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