In a landmark victory
for constitutional protections and the separation of powers in the post-9/11
era, a panel of the 2nd U.S. Circuit Court of Appeals issued a 2-1 ruling
barring the president from declaring a U.S. citizen an “enemy combatant”
without congressional authorization. In a decision likely to influence another
case on enemy combatants before the Supreme Court case, the federal appeals
court ordered the government to release U.S. citizen Jose Padilla from military
custody in thirty days, with the option of transferring Padilla to civilian
authorities for a criminal trial. The ruling marks a growing judicial backlash
against unfettered presidential authority during a period of war. Given the
week’s events, the ruling couldn’t have come at a better time. With controversy
over the status of Guantanamo detainees and the PATRIOT Act growing to a
feverish pitch, it’s about time the Constitution gained a voice, and an arm
strong enough to back it up.
If the greatest threat to constitutional freedoms weighs heaviest on the
backs of the minority, then a prime candidate for this can easily be found
in enemy combatants such as Jose Padilla. A poor kid from a Puerto Rican
family who cut his teeth on the streets of Chicago, it didn’t take long for
Padilla to find his way from gang life to the arms of the law by the time
he was 13 years old. His run-ins with the law seemed to end after he spent
a year in a Florida jail, converting to a radical sect of Islam in the process.
After stints in a series of fringe mosques and Afghani schools, Padilla had
a meeting with Al-Qaeda chief of operations Abu Zubaydah to build a so-called
“dirty bomb” bound for the United States, FBI officials allege. Since Padilla’s
arrest, however, intelligence officials have openly discredited Abu Zubaydah,
calling his reliability “uncertain at best.” Moreover, the Associated Press
released a story in August quoting law-enforcement officials who have dismissed
Padilla’s role in Al-Qaeda as a “small fish,” whose plans never got past
the drawing board.
These large problems with the government’s case might explain why, a day
before conservative Judge Michael Mukasey was set to rule on Padilla’s status
as a material witness in the “dirty bomb” case, the Defense Department removed
the prisoner in the middle of the night to a Navy brig in Charleston, South
Carolina. The next day, Attorney General Ashcroft held a press conference
declaring Padilla an “enemy combatant” who would be held in the military
brig without a warrant, access to an attorney, or any charges filed against
him. The entire episode reeked of under-handed tactics and desperate attempts
by the Justice Department to show, with the capture of Padilla, that it was
effectively fighting the war on terror and keeping the “bad guys” locked
away -- even if that meant suspending all constitutional protections of the
accused in the process.
After a year and a half of physical isolation and legal abandonment, it is
time that Padilla has his day in court. As Senator John McCain has openly
questioned, if the government has enough evidence to formally charge Padilla,
why are they so adamantly opposed to presenting it before a judge? Hopefully,
in thirty days time, the truth behind Padilla’s imprisonment will come to
light. However, with the option still open to challenge the panel’s ruling,
the government can at least temporarily keep him behind bars as an “enemy
combatant” at the president’s discretion.
Obviously, the repercussions of this case extend far beyond the rights and
livelihood of a man who’s turned his back against authority for much of his
life. The horror is this story could happen to anyone -- citizen or non-citizen.
The actions of the Administration in this case defy the fundamental role
of our constitutional rights: protecting the rights of the minority against
the tyranny of the state. If all of us can’t find something to get riled
up about in the case of Jose Padilla, then the Constitution will have lost
its last line of defense against tyrannical rule -- an informed and active
Brigid O'Neil is a Researcher at the Center on Peace & Liberty at the Independent Institute, where this article first appeared.