John Whitehead's Commentary
Should Jose Padilla Have His Day In Court?
A constitutional battle of landmark proportions is currently being waged over an American citizen who has been imprisoned for over a year now. His name is Jose Padilla.
At the heart of the debate is the question of whether Padilla has a right to his day in court--in other words, whether he should be afforded the same constitutional rights as every other American citizen. The outcome could have far-reaching repercussions on the rights of all Americans--law-abiding or not.
Unarmed and carrying valid identification, Padilla was arrested by the FBI on May 8, 2002, while getting off a plane at Chicago's O'Hare Airport. Supposedly, he was on his way to appear before a grand jury as a material witness. The subject matter of his testimony was one of concern to all Americans--his knowledge, if any, of an al Qaeda plan to detonate a so-called "dirty bomb" somewhere in the United States.
Before he knew it, Padilla, a native of Brooklyn, was whisked away to a high-security federal prison in Manhattan, where he was assigned a court-appointed attorney. However, before his attorney could prepare a defense for Padilla, President George W. Bush declared him an "enemy combatant." He was then hauled off by the military to a naval prison in South Carolina, where he has since been held in solitary confinement--with no access to his lawyer and no contact with his family. The only people he has been able to communicate with have been the military guards and his interrogators.
In many ways, it is understandable why the Bush Administration labeled the 32-year-old Padilla an enemy combatant. Their rationale, laid out in a six-page Pentagon document, shows that Padilla is no stranger to run-ins with the law. He was convicted of murder in Chicago before he was 18. After being released from prison on this charge, Padilla was convicted on a weapons charge. Thereafter, he entered into what is now considered suspicious activity. After his release from prison on the weapons charge, Padilla immigrated to Egypt and changed his name to Abdullah al Muhagir. Also, according to the Pentagon, it is likely that Padilla has traveled to Saudi Arabia and Afghanistan, two hot-beds of al Qaeda activity. It is alleged that, while in Afghanistan in 2001, Padilla approached a senior Osama bin Laden lieutenant and proposed the theft of radioactive materials to build and detonate a dirty bomb inside America. The Pentagon also alleges that Padilla did research on the dirty bomb device while living at an al Qaeda safe house in Pakistan shortly before his latest arrest in Chicago.
Unfortunately, the sole public evidence against Padilla is the Pentagon document, which was supposedly based on "confidential sources." However, according to the Washington Post, the Pentagon now admits that its sources may not have been "completely candid." Indeed, one informant subsequently recanted his testimony and another was being treated with drugs at the time he fingered Padilla. Thus, Padilla has been locked away in solitary confinement based upon the testimony of a liar and a drug user.
Calling on the long-cherished American doctrines of due process and fair treatment under the law, Padilla's attorney filed a petition for habeas corpus, challenging the lawfulness of Padilla's detention and seeking a court order that he be permitted to consult with legal counsel. And in early December 2002, New York federal district court judge Michael B. Mukasey held that although Padilla's detention was not per se illegal, he must be granted the assistance of an attorney "under conditions that assure that he cannot transfer information to terrorist allies." After all, under the American system of justice, we are presumed innocent until proven guilty. The Pentagon has now appealed that decision, arguing that it wants unchecked authority to detain American citizens labeled as enemy fighters. The case may eventually find its way to the U.S. Supreme Court.
The Padilla case raises some pivotal constitutional questions. First, can an American citizen, who by all outward appearances is law abiding and who was arrested on U.S. soil, be held incommunicado in a military prison indefinitely without being charged with a crime and without access to a lawyer? And second, does the president possess the constitutional authority to designate certain citizens suspected of terrorism as enemy combatants and have them confined incommunicado in military prisons?
The framers of our Constitution, who knew firsthand about tyrannical government, wanted to ensure that every American citizen had their day in court, no matter what they were charged with. This is a core American value and is enshrined in the Sixth Amendment to our Constitution.
The framers of our Constitution also recognized that the accumulation of power in the presidency could result not only in an imbalance in our government but also in the possible misuse of power. As James Madison, one of the driving forces behind the Constitution, noted, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny." That is why the framers established three co-equal branches--the executive, the judicial and the legislative. This is commonly called the separation of powers, and it means that if the president, for example, oversteps his bounds, a court of law may correct him. That is exactly what Judge Mukasey's decision has done in this particular case. It has carefully balanced the president's right to provide for national security against an American citizen's right to his day in court.
Congress has also affirmatively acted in this area. More than a quarter of a century ago, Congress reviewed presidential misconduct at home during World War II and the Cold War--the most pressing national security crises of the 20th century. One of the most blatant miscarriages of justice was President Roosevelt's executive order that forced innocent Japanese-Americans from their homes into concentration camps during World War II. To reign in what it considered presidential excess, in 1971 Congress enacted a law to ensure that the president could not detain American citizens without specific legislative authorization for the detention. The law simply states, "No citizen shall be detained by the United States except pursuant to an act of Congress." Since this law, there has been no legislation which has allowed the president to imprison U.S. citizens. It is highly likely, then, that President Bush acted outside his scope of authority.
Virtually every alleged terrorist in U.S. history has had his day in court with an attorney by his side. These include such American citizens as Oklahoma City bomber Timothy McVeigh, Taliban fighter John Walker Lindh and Yasser Hamdi, who was captured in a combat zone in Afghanistan. They also include shoe bomber Richard Reid and Zacarias Moussaoui, allegedly a 9/11 hijacker.
A host of organizations worldwide have condemned the Padilla detention, including the American Bar Association and Amnesty International, which has condemned Padilla's treatment as "an unprecedented suspension of fundamental rights of U.S. citizens in U.S. custody."
Jose Padilla now sits alone in a military cell where he is not even allowed to see his family (a son in Chicago and his mother in Florida) or use the telephone. He has to be wondering whether he will ever see the light of day again. And although the Bush Administration may have been correct in focusing on Padilla and having him confined, as an American citizen he not only deserves but is entitled to his day in court where he can stand against his accusers and present a case, if he has one.
At the heart of the debate is the question of whether Padilla has a right to his day in court--in other words, whether he should be afforded the same constitutional rights as every other American citizen. The outcome could have far-reaching repercussions on the rights of all Americans--law-abiding or not.
Unarmed and carrying valid identification, Padilla was arrested by the FBI on May 8, 2002, while getting off a plane at Chicago's O'Hare Airport. Supposedly, he was on his way to appear before a grand jury as a material witness. The subject matter of his testimony was one of concern to all Americans--his knowledge, if any, of an al Qaeda plan to detonate a so-called "dirty bomb" somewhere in the United States.
Before he knew it, Padilla, a native of Brooklyn, was whisked away to a high-security federal prison in Manhattan, where he was assigned a court-appointed attorney. However, before his attorney could prepare a defense for Padilla, President George W. Bush declared him an "enemy combatant." He was then hauled off by the military to a naval prison in South Carolina, where he has since been held in solitary confinement--with no access to his lawyer and no contact with his family. The only people he has been able to communicate with have been the military guards and his interrogators.
In many ways, it is understandable why the Bush Administration labeled the 32-year-old Padilla an enemy combatant. Their rationale, laid out in a six-page Pentagon document, shows that Padilla is no stranger to run-ins with the law. He was convicted of murder in Chicago before he was 18. After being released from prison on this charge, Padilla was convicted on a weapons charge. Thereafter, he entered into what is now considered suspicious activity. After his release from prison on the weapons charge, Padilla immigrated to Egypt and changed his name to Abdullah al Muhagir. Also, according to the Pentagon, it is likely that Padilla has traveled to Saudi Arabia and Afghanistan, two hot-beds of al Qaeda activity. It is alleged that, while in Afghanistan in 2001, Padilla approached a senior Osama bin Laden lieutenant and proposed the theft of radioactive materials to build and detonate a dirty bomb inside America. The Pentagon also alleges that Padilla did research on the dirty bomb device while living at an al Qaeda safe house in Pakistan shortly before his latest arrest in Chicago.
Unfortunately, the sole public evidence against Padilla is the Pentagon document, which was supposedly based on "confidential sources." However, according to the Washington Post, the Pentagon now admits that its sources may not have been "completely candid." Indeed, one informant subsequently recanted his testimony and another was being treated with drugs at the time he fingered Padilla. Thus, Padilla has been locked away in solitary confinement based upon the testimony of a liar and a drug user.
Calling on the long-cherished American doctrines of due process and fair treatment under the law, Padilla's attorney filed a petition for habeas corpus, challenging the lawfulness of Padilla's detention and seeking a court order that he be permitted to consult with legal counsel. And in early December 2002, New York federal district court judge Michael B. Mukasey held that although Padilla's detention was not per se illegal, he must be granted the assistance of an attorney "under conditions that assure that he cannot transfer information to terrorist allies." After all, under the American system of justice, we are presumed innocent until proven guilty. The Pentagon has now appealed that decision, arguing that it wants unchecked authority to detain American citizens labeled as enemy fighters. The case may eventually find its way to the U.S. Supreme Court.
The Padilla case raises some pivotal constitutional questions. First, can an American citizen, who by all outward appearances is law abiding and who was arrested on U.S. soil, be held incommunicado in a military prison indefinitely without being charged with a crime and without access to a lawyer? And second, does the president possess the constitutional authority to designate certain citizens suspected of terrorism as enemy combatants and have them confined incommunicado in military prisons?
The framers of our Constitution, who knew firsthand about tyrannical government, wanted to ensure that every American citizen had their day in court, no matter what they were charged with. This is a core American value and is enshrined in the Sixth Amendment to our Constitution.
The framers of our Constitution also recognized that the accumulation of power in the presidency could result not only in an imbalance in our government but also in the possible misuse of power. As James Madison, one of the driving forces behind the Constitution, noted, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny." That is why the framers established three co-equal branches--the executive, the judicial and the legislative. This is commonly called the separation of powers, and it means that if the president, for example, oversteps his bounds, a court of law may correct him. That is exactly what Judge Mukasey's decision has done in this particular case. It has carefully balanced the president's right to provide for national security against an American citizen's right to his day in court.
Congress has also affirmatively acted in this area. More than a quarter of a century ago, Congress reviewed presidential misconduct at home during World War II and the Cold War--the most pressing national security crises of the 20th century. One of the most blatant miscarriages of justice was President Roosevelt's executive order that forced innocent Japanese-Americans from their homes into concentration camps during World War II. To reign in what it considered presidential excess, in 1971 Congress enacted a law to ensure that the president could not detain American citizens without specific legislative authorization for the detention. The law simply states, "No citizen shall be detained by the United States except pursuant to an act of Congress." Since this law, there has been no legislation which has allowed the president to imprison U.S. citizens. It is highly likely, then, that President Bush acted outside his scope of authority.
Virtually every alleged terrorist in U.S. history has had his day in court with an attorney by his side. These include such American citizens as Oklahoma City bomber Timothy McVeigh, Taliban fighter John Walker Lindh and Yasser Hamdi, who was captured in a combat zone in Afghanistan. They also include shoe bomber Richard Reid and Zacarias Moussaoui, allegedly a 9/11 hijacker.
A host of organizations worldwide have condemned the Padilla detention, including the American Bar Association and Amnesty International, which has condemned Padilla's treatment as "an unprecedented suspension of fundamental rights of U.S. citizens in U.S. custody."
Jose Padilla now sits alone in a military cell where he is not even allowed to see his family (a son in Chicago and his mother in Florida) or use the telephone. He has to be wondering whether he will ever see the light of day again. And although the Bush Administration may have been correct in focusing on Padilla and having him confined, as an American citizen he not only deserves but is entitled to his day in court where he can stand against his accusers and present a case, if he has one.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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