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Savaging the Law in the Padilla Case
“The world must construe according to its wits; the court must
construe according to the law.” Sir Thomas More “A Man for All
Seasons” by Robert Bolt
By Mike Whitney
11/22/05 "ICH" -- -- Jose Padilla was arrested in June of 2002 at
Chicago’s O’ Hare Airport and taken into custody. The Attorney
General John Ashcroft made a dramatic appearance on national TV to
announce the arrest, claiming that Padilla was a terrorist and was
plotting to detonate a “dirty bomb” within the country. The fanfare
surrounding the incident was intended to divert attention from the
testimony of FBI special agent, Colleen Rowley, whose damning
account of government negligence in the 9-11 investigation
threatened to dominate the news. It was later discovered that
Padilla had been imprisoned three weeks earlier, but the
announcement was delayed by the Justice Dept in a cynical ploy to
grab the headlines.
The government has never produced a shred of evidence that Padilla
is guilty of any of the crimes for which he has been accused.
Instead, the administration has used its unchecked power to
indefinitely detain Padilla while refusing to charge him with a
crime.
The Padilla case has never been about Jose Padilla, domestic
terrorism, or any of the other spurious claims made by the
government. It is, in fact, about enhancing presidential power, so
the executive is no longer required to comply with the law. Padilla
pits the language of right-wing think tanks, “enemy combatant”,
against habeas corpus, the cornerstone of the American justice
system. So far, the made-up language of the Bush team has prevailed.
The moniker, enemy combatant, signifies the end of the rule of law.
It means that the president can arbitrarily strip American citizens’
of their inalienable rights and deprive them of any method for
challenging their detention. It sweeps away long-honored provisions
of due process, equal justice, and the presumption of innocence.
Enemy combatant is the language of tyranny. It bestows of the
president the absolute power of a monarch to ignore the law and lock
up American citizens according to his own whims.
This explains why the Bush administration has persistently refused
to file charges against Padilla. They realize that the overturning
of habeas corpus creates a de facto dictatorship in the United
States. And, as Bush said in 2002, “There’s nothing wrong with a
dictatorship, as long as I am the dictator”.
So, why has Bush backed away from “indefinite detention by
presidential fiat” and agreed to file charges against Padilla?
Does this mean that the administration’s 3 and a half year struggle
for absolute power is over?
The Bush administration faced a Monday deadline to file a brief
before the Supreme Court in an appeal by Padilla. Somehow they found
out in advance that the court would not support their attack on
habeas.
How?
This suggests that members of the Supreme Court may have colluded
with the administration and advised them to modify their case
against Padilla. How else would one explain the sudden change of
heart by an administration that has worked unwaveringly for years
for one objective alone; the revoking of habeas corpus?
An independent investigation would probably show that either Roberts
or, more likely, Scalia signaled that they would not be willing to
rescind the constitution at this time.
How ironic, that the most celebrated conservative on the court may
have actually saved personal liberty in America.
The Bush administration has now filed formal charges against
Padilla.
In yesterday’s announcement, Attorney General Alberto Gonzales
completely reversed the governments original claims about Padilla,
now saying that he was part of a “North American support cell”
organized to send “money, physical assets and new recruits” overseas
to engage in acts of terrorism and that he had traveled abroad
himself to become a “violent jihadist”. (New York Times)
That’s quite a switch from a “dirty bomber”.
So, what can we expect now?
Padilla will have to begin the entire process from square one. The
administration, which has neither witnesses nor proof, will play a
cat-and-mouse game of claiming to have evidence which it cannot show
the court for national security reasons. Deviating from that
strategy would probably produce a swift acquittal for Padilla, which
will never happen, since it would show that Bush intentionally
locked away an innocent man for purely political reasons.
Padilla is just a pawn in a much bigger game of ever-increasing
presidential power. His case will drag on for years to save the
administration any further embarrassment.
By avoiding a confrontation with the Supreme Court, Bush has managed
to safeguard his greatest weapon for savaging liberty in America;
the enemy combatant label. That will go back into the imperial
tool-chest where it can be used as a branding-iron against
dissidents, troublesome critics, or political enemies. For now,
however, they will have to patiently await the appointment of Samuel
Alito before they can pound the last nail into the Bill of Rights.
Set Padilla Free
Padilla should be released immediately even if he is guilty. His
unjust imprisonment is more damaging to our security than any danger
he may pose to society.
The rule of law protects us all from the abuses of the state, and
the state has always been the traditional enemy of individual
freedom. This case is no different. The law has been cynically
manipulated by those who are sworn to defend it; purposely warped to
increase the power of the president and bend it to his will. That is
the real crime here.
The law is the only thing that stands between us and the cruelty of
men who would torture and kill to achieve their political ambitions.
That isn’t speculation or hyperbole; it’s simply a matter of fact.
In “A Man for all Seasons” Sir Thomas More articulates the
importance of the law as our only refuge from the recklessness of
would-be tyrants.
Sir Thomas More: “And when the last law was down, and the Devil
turned ‘round on you, where would you hide, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man’s
laws, not God’s! And if you cut them down do you really think you
could stand upright in the winds that would blow then? Yes, I’d give
the Devil benefit of the law, for my own safety’s sake!”
Where will we hide after Bush has cut down all the laws?
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