by Scott Horton Antiwar.com August 12, 2005
For my radio show on August 6th I interviewed Jacob Hornberger, the founder and president of the Future of Freedom Foundation. [stream] [download] The man was upset. Why? Because, he says, the Bush regime, which has already acted contrary to every one of the first ten amendments, is now poised to destroy the Bill of Rights forever. All that remains between us and the final destruction is for the Supreme Court to approve the actions of the Department of Defense in the case of Padilla vs. Rumsfeld.
Padilla, you’ll recall, is the American citizen accused of being a conspirator in a plot to detonate a dirty bomb in the US. When U.S. district judge of the Southern District of New York, Michael B. Mukasey, told the government to produce the defendant, the White House team decided instead to turn him over to the US Navy, which they did, on June 9th, 2002.
As Lewis Z. Koch described the scene in the Bulletin of Atomic Scientists:
‘Mukasey reasoned in 2002 that Padilla, charged with being a terrorist and dirty-bomber for al-Qaeda, certainly deserved an attorney, maybe even a gaggle of them. So Mukasey appointed Donna Newman to represent Padilla. Newman met with Padilla on at least two occasions, then asked the judge to vacate the warrant for Padilla because he had not been charged with a crime. (Newman was quickly joined by some legal heavy hitters from the American Civil Liberties Union, the New York Civil Liberties Union, the Center for National Security Studies, the New York State Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers.)
The government insisted on an ex parte (private) meeting with Mukasey. The Justice attorneys told the judge something to the effect of, ‘Oops, sorry about that, Judge, but the witness subpoena for Padilla is being withdrawn.’ Mukasey promptly signed papers vacating the warrant. Then the Justice attorneys announced that President Bush had designated Padilla an ‘enemy combatant,’ and before you could say Mr. Mxyztplk, Padilla was whisked off to the Consolidated Naval Brig, 769 miles away from his attorney.‘
The Navy has held Padilla in that South Carolina brig without access to his lawyer ever since.
Why would the government go to such lengths to persecute Jose Padilla in the first place? Perhaps it’s because when Ashcroft announced his detainment as an ‘enemy combatant,’ — fittingly from Moscow — Padilla was described as a terrible al-Qaeda terrorist threat — a man capable of, and intent on, detonating a ‘dirty bomb’ which would cause ’cause mass death and injury.’ The truth is, Padilla had no money, no experience with bombs, and no access to radioactive material. In short, it was decided that because the criminal case against Padilla was paper thin, his fate could not be left to some irresponsible federal judge or jury to decide, and so they turned him over to the military. If George Bush has his way, the military will have successfully claimed the legal right to do this to you too.
No phone call. No lawyer. You are a terrorist, as ‘determined’ by the president in a ‘finding.’ A secret military tribunal will decide your fate. With the consent of two-thirds of a jury of handpicked officers, they will do with you as they like.
Even though Jose Padilla is a US citizen from Chicago, that shouldn’t even matter. The Bill of Rights doesn’t once mention the word ‘citizen.’ It says ‘people,’ ‘owner,’ ‘persons,’ ‘the accused.’ Two constitutional amendments clearly in question in this case are the 5th and 6th:
‘Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.‘
According to the Federal three judge Appeals Court Panel panel in Washington DC, the Bill of Rights doesn’t mean what it says. They seem to have found a part of the constitution’s commander-in-chief-clause, the first part of Article 2, Section 2, Clause 1, which gives the president the right to label people ‘enemy combatants’ and turn them over to military tribunals. Let’s see here:
‘The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. ‘
Huh. I don’t see the part about Star-Chamber courts with boundless execution power. Oh, well, it’s a ‘living constitution,’ right?
(Funny thing about the US Court of Appeals panel which overturned the decision of the lower courts that had ruled against Bush’s tribunals: John Roberts, Bush’s Supreme Court nominee, opined with the unanimous court the day after interviewing with Bush for his chance at the big promotion.)
If he’s lucky, Bush will have that rat confirmed for the highest court just in time to hear the Padilla case — a case which the court previously ducked, saying that they should have sued the local brig warden instead of Rumsfeld.
By the way, ‘enemy combatant‘ is a distinction of accused criminals that exists only in the sick minds of the current administration, and has no basis in law whatsoever. When the US Congress tried to add the most basic rules for the treatment of these prisoners to a recent ‘defense’ spending bill, Bush, who has never vetoed anything, threatened to veto it. The White House apparently thought that they could intimidate the Congress by making them look bad for not ‘supporting the troops.’ This plan backfired. So to avoid the embarrassment of the president by those from his own party, the bill was withdrawn by the leadership rather than voted on.
The National Association of Criminal Defense Lawyers has long ago announced their intent to boycott the tribunals, and now even the prosecutors are resigning in protest over the ‘rigging’ of the process. One military prosecutor, Capt. John Carr, said in an angry email to his superiors:
‘When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused.
‘Instead, I find a half-hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.
‘You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel.’
All this, even as they prepare to release more detainees from Guantánamo Bay. Does that mean that all along they’ve been innocent sheepherders kidnapped by the Afghan Northern Alliance and then sold to the Republicans for the taxpayer’s cash? Or is there a nice Karen Hughes reeducation program going on down there that turns out white, middle age, middle class, Protestant types who favor mercantilism and war?
No politician who replaces Bush would relinquish this power once claimed. Bush/Cheney have three and a half more years, the Republicans in Congress, having taken full advantage of their ability to redraw important congressional districts all over America, probably have at least as long, and they are completely unwilling or unable to stop the executive branch. Another bad court decision and another attack, and it could start looking like Woodrow Wilson’s purges around here pretty fast. As far as the state protecting us from itself, the Supreme Court is all we have left.
Cross your fingers, and let the Amicus Curiae roll.
