Jose Padilla, Enemy Combatant

by Doug Muder


Over the last couple weeks I've decided to educate myself about the legal issues that have me worried. Today's subject is Jose Padilla, the "dirty bomb suspect" who has been held incommunicado in a military brig since June of 2002 without being charged with a crime. The government is still contesting whether or not to allow a lawyer to see him; a judge ordered that he be allowed a lawyer, but the government is appealing that ruling.

Some background: The government arrested Padilla in O'Hare Airport after he returned from Pakistan. He is an American citizen. He can be held indefinitely without charges because President Bush has declared him to be an "enemy combatant". The government claims that he was part of an Al Qaeda plot and that he knows something about Al Qaeda in general. The point of holding him apparently is to interrogate him, but the government has no obligation to either charge or release him even if he talks.

Why call attention to Padilla at all? If what the government says about him is true -- that he plotted to explode a "dirty bomb" which would have scattered radioactive material over some American city -- then he's a pretty bad guy. And since all the details of the case are secret, I have no way of knowing whether he's guilty or not. Why speak up for someone who may turn out to be a horrible villain?

At one time I would have thought the danger here is obvious, but in the current climate I think I'll spell it out: If the government can put you in jail without having to justify its reasons to anyone, then the rest of your rights don't mean anything. What is a right, after all? Fundamentally, you have a right to do something if the government can't punish you for doing it. The Bill of Rights guarantees that the government can't put you in jail for speaking freely, meeting with like-minded people, practicing an unpopular religion, publishing your views, and so on. But if the government can put you in jail without giving any reason at all, then those other rights are meaningless. The Jose Padilla case implies that all the things we think of as rights are actually just privileges. In other words, we can do them until someone in the government decides that we can't.

If you have trouble wrapping your mind around this concept, take a look at the document declaring Padilla to be an enemy combatant.  It is short and to the point. It consists of a series of seven numbered statements -- declarations, without arguments or evidence -- followed by an order for the military to detain Padilla. That's all it takes. If President Bush were to sign such a document with your name on it, you would also be in the brig indefinitely without being able to talk to a lawyer, your family, or anyone else. There would be no hearing in which you could try to clear your name.

(Some people may object that President Bush -- or some future president -- would not dare to declare someone an enemy combatant unless he had good information that this was really the case. I recommend that they take a look at the way that the material witness laws are being misused. The material witness laws were written to allow the government to hold witnesses who might flee rather than testify in court. But today they are being used to imprison people who are never called to testify. Padilla, in fact, was held for a month as a material witness prior to being declared an enemy combatant. Neither during that month nor at any time since has he been called to testify.)

A collection of public documents related to the Padilla case are available at FindLaw.com. Several of these documents contain good legal summaries of the case. One presumably neutral summary is contained in a judge's order from December 2002. A cogent brief on Padilla's behalf is supplied by the New York State Association of Criminal Defense Lawyers. This brief describes how the government's claims in the Padilla case resemble claims rejected by the Supreme Court in 1866 after the Civil War. This ruling (Ex Parte Milligan) limits the imposition of martial law (which the brief claims Padilla's detention constitutes) to situations in which an immediate military conflict makes it impossible for an appropriate court to convene. "Martial rule can never exist where the courts are open."

I had thought that the basis for Bush's extraordinary power was the Patriot Act, because that seems to be the Catch-22 behind everything tyrannical that the government does these days. But in fact it is Public Law 107-40, passed on September 18, 2001, less than a week after 9/11. Public Law 107-40 is also short and to the point. There are a few whereas-statements outlining the general 9/11 situation, but the gist of what is resolved is this: "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This resolution passed the Senate 98-0, with all Democratic senators present and voting Yes. The Patriot Act, by the way, passed 98-1, with only Senator Feingold of Wisconsin voting against it.

The judge's order refers to a declaration by Michael Mobbs, a Defense Department employee, which describes the information given to President Bush prior to his declaration that Padilla was an enemy combatant. An edited version of the Mobbs declaration is available to the lawyer representing Padilla (the one who cannot meet with his client), but the unedited version is not available to the defense lawyer. In other words, Padilla and his lawyer have no right to know what Bush was looking at when he decided to lock Padilla up and throw away the key. If there is any misinformation in that document, Padilla has no chance to correct it.

This, folks, is America in 2003. The government can lock up anybody for any length of time, and they don't have to tell you why. The next time someone tells you that we need to send American troops to liberate some foreign country, you might ask them how we can liberate ourselves.

Doug Muder
April, 2003
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