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The Importance of the Padilla Case
Via NY Transfer News Collective * All the News that Doesn't Fit
Counterpunch - Jan 5, 2008
http://www.counterpunch.org/hornberger01052008.html
Subverting the Rule of Law
The Importance of the Padilla Case
By JACOB HORNBERGER
At Jose Padilla's habeas corpus hearing, the district court upheld the
enemy-combatant doctrine and ruled that there was sufficient evidence
to conclude that he was, in fact, an enemy combatant. His petition for
writ of habeas corpus was denied.
Padilla appealed to the Second Circuit Court of Appeals in New York,
which overturned the district court's ruling. The court rejected the
enemy-combatant doctrine for Americans arrested on American soil,
effectively holding that if the government had evidence that Padilla
had committed some act of terrorism, it would have to secure a criminal
indictment against him and prosecute him in federal district court.
Since the U.S. military was holding Padilla under no valid
justification, the fact that the government was able to produce
incriminating evidence was irrelevant because, again, both prongs of
the test must be met. What the court was effectively telling the
government was: Charge Padilla in federal district court with a
criminal offense or release him.
The government appealed that decision to the U.S. Supreme Court. The
Supreme Court refused to rule on the merits of the case and instead
dismissed it on a procedural ground. The Court ruled that the original
petition should have been brought in a South Carolina federal district
court rather than a New York federal district court because that was
where Padilla was in military custody. In their dissent to this ruling,
however, some of the justices were clearly sympathetic to Padilla's
arguments.
Padilla then started all over, filing a new petition for writ of habeas
corpus in a South Carolina federal district court. The South Carolina
district court rejected the enemy-combatant doctrine, effectively
holding the same thing that the Second Circuit Court of Appeals had
held. The South Carolina court also effectively told the government:
Charge Padilla in federal district court or release him.
The government then appealed to the Fourth Circuit Court of Appeals in
Richmond, which is reputed to be the most conservative federal appeals
court in the nation. Upholding the enemy-combatant doctrine, in June
2005 a three-judge panel of that court overturned the South Carolina
district court's ruling.
While Padilla was appealing that decision to the U.S. Supreme Court,
the government pulled a very clever legal maneuver. In November 2005 --
three years after he had been taken into custody -- the government
secured a criminal indictment against Padilla and transferred him from
military custody to civilian custody for criminal prosecution for
terrorism in a Florida federal district court. That meant that
Padilla's habeas corpus appeal to the U.S. Supreme Court was now moot,
because he was no longer in military custody. With the government's
clever legal maneuvering, the nation was left with the Fourth Circuit's
decision upholding the enemy-combatant doctrine and without much of a
chance that the Supreme Court would have the opportunity to consider
and possibly overturn that decision any time soon.
On August 7, 2007, a federal jury convicted Padilla of criminal
offenses relating to terrorism.
The importance of the Padilla case
It is impossible to overstate the importance of the principles involved
in the Padilla case for the American people. Ordinary Americans might
ask, "Why get all upset about some guy named Jose Padilla? He's just a
terrorist."
What such Americans fail to realize, however, is that Padilla was just
the test case whose legal principles would then apply to all Americans.
That's why groups dedicated to civil liberties and especially the Bill
of Rights have focused such an inordinate amount of attention on the
Padilla case. They understood that if the enemy-combatant doctrine
would be upheld with respect to Padilla, the government would then be
able to apply it against all Americans, including dissidents,
protesters, and critics of the government.
The enemy-combatant doctrine constitutes the most direct and dangerous
threat to the freedom of the American people in the history of our
country. Prior to 9/11, terrorism was considered by almost everyone a
federal criminal offense. If anyone, including an American, was accused
of terrorism, the government had to secure a grand-jury indictment
against him and prosecute him in U.S. district court. In that
proceeding, the accused would be entitled to all the rights and
guarantees enumerated in the Bill of Rights, such as the right to
counsel, right to due process of law, right to trial by jury, right to
be free from unreasonable searches and seizures, right to confront
witnesses, and right against self-incrimination.
The fact that terrorism has historically been considered a criminal
offense was reflected, for example, in the federal criminal
prosecutions of convicted terrorists Ramzi Yousef, one of the
architects of the 1993 bombing of the World Trade Center, and Timothy
McVeigh, the man who bombed the Oklahoma City federal building. Indeed,
even in the post9/11 era, the government has prosecuted one of the
9/11 co-conspirators, Zacarias Moussaoui, in federal district court, as
well as other terrorist suspects in Michigan, Florida, and elsewhere.
What was revolutionary about President Bush's treatment of Jose Padilla
was that for the first time in U.S. history, the government was
claiming the power to treat suspected terrorists in two alternative
ways:
(1) through the normal federal-court route; and
(2) through the enemy-combatant route.
It would be difficult to find a more perfect violation of the age-old
principle of the "rule of law," the principle that holds that all
people should have to answer to a well-defined law for their conduct
rather than to the discretionary decisions of government officials.
With the post9/11 option to treat suspected terrorists in two
completely different ways, each with markedly different consequences,
the president and the Pentagon converted the United States from a
"nation of laws" to a "nation of men."
[Jacob G. Hornberger is founder and president of The Future of Freedom
Foundation.]
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