More Reasons not to trust Bush

The US is playing a hide and seek game with one of the nation's most “important” prisoners. Using aggressive and questionable legal procedures, the government has forced alleged "dirty bomb" conspirator Jose Padilla through a torturous ordeal unprecedented in American jurisprudence. Since his arrest 3-1/2 years ago at Chicago's O'Hare International Airport, the government has repeatedly asserted unilateral power in a way that has prevented Mr. Padilla's from adequately defending himself. Remember very carefully – Mr. Padilla is a US citizen. In addition, Justice Department lawyers have used that same unilateral power to help insulate their actions from the scrutiny of the judiciary - including the US Supreme Court. Padilla had earned a unique status among those imprisoned by the government - he is the first American citizen seized on American soil to be held in indefinite detention , he is charged with being an enemy combatant, and he has been charged with being a trained member of Al Qaeda who planned to blow up apartment buildings and detonate a radiological device in a major city.

The government's conduct has generated a string of legal challenges raising some of the most fundamental issues of US constitutional law. They include the president's authority to name US citizens as "enemy combatants" in the war on terror and what rights, if any, protect American citizens. “At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens in assessing the Padilla case in 2004, "If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny." Justice Stevens wrote those words in dissent of a 5-4 decision by the high court to dismiss Padilla's case on jurisdictional grounds rather than confronting the central constitutional issues. Now Padilla's case is back before the Supreme Court where it is being asked to re-consider Padilla's arguments and to judge the legality of the administration's actions. Many Supreme Court observers believe at least five of the justices are prepared to rule in Padilla's favor should the high court agree to take up his case.

Fearing their case will be exposed as the house of cards it appears to be, the Bushies are urging the justices not to hear the Padilla case. Also, now the Bush administration is attempting to run away from an appearance in the Supreme Court by announcing in a surprise move that it was ending its open ended detention of Padilla as an enemy combatant, relocating him to a Miami lockup, and charging him with providing material support to terror groups. Juliette Kayyem, a terrorism and security expert at Harvard's Kennedy School of Government, says the Miami charges appear to be an effort to setup a plea deal that will help the government resolve the case without messy court hearings that might reveal sources as well as procedures. Administration lawyers cited national security and safety concerns as justification for the extraordinary security measures taken against Padilla. But the Miami charges include no mention of dirty bombs or apartment building plots. "God knows what happened to him during his detention and what kind of interrogation processes he was put through, and they don't want that to come out," she says. At the same time the Bushies want to avoid possible defeat in the Supreme Court. "Basically, they need this case to go away," Ms. Kayyem says.

The Miami charges are only the most recent effort by the government to use abusive presidential authority in the “war on terror” and to continue evading proper judicial review of its actions. Again, the Padilla case is especially egregious as this is an American citizen whose rights have been abrogated.
"They have tried every procedural trick in the book to avoid letting the court get to the merits of the case," says Jenny Martinez, one of Mr. Padilla's lawyers. "At this point the kind of maneuvers they are pulling don't pass the sniff test."

In 2002, for example, when it looked as if Padilla might win a court battle challenging his detention in New York, Georgie designated him an "enemy combatant," two days before the hearing. With that designation, Padilla was suddenly taken to a military prison in South Carolina, held incommunicado, and denied access to his lawyers for two years until it became clear that the government's position in its Supreme Court arguments would being damaged. His lawyers were not informed of the move until after the fact, making it impossible for them to file a habeas corpus petition to clearly establish New York as the proper venue for future litigation in the case. The government's shady and disgraceful action was designed to transfer the case to one of the most conservative appeals courts in the country, the Fourth US Circuit Court of Appeals in Richmond, Va. That move was highly successful for the feds, as months later, a New York appeals court ruled in Padilla's favor, saying the president lacked constitutional authority to order his indefinite detention as an enemy combatant.

The government appealed the ruling and the case arrived at the Supreme Court in 2004. Justice Dept lawyers insisted Padilla's lawyers had filed their suit in the wrong jurisdiction - New York's Second Circuit instead of the Fourth Circuit. The Supreme Court agreed, dismissing the case without addressing the central constitutional issues. How convenient for the feds. After losing at the Supreme Court, Padilla's lawyers filed a new suit in South Carolina challenging his detention. A federal judge ruled in Padilla's favor, but the Fourth Circuit reversed, ruling in September that President Bush has the authority to detain Padilla in open-ended military custody. It is that ruling that is now under consideration for review at the Supreme Court.

The lengthy appeal bought more time for government agents and interrogators working to uncover the full scope of Padilla's alleged connections to Al Qaeda and any knowledge he had of ongoing terror plots. But where is their evidence? They apparently have none as the “new” charges do not include the original reasons for arresting him, namely, he was “planning to blow up apartment buildings and detonate a radiological device in a major city.”

In the meantime, the Fourth Circuit Court appears to be having second thoughts about its Padilla decision. The court has asked the government to explain why it shouldn't void its September ruling. In a brief filed last week, the Justice Department conceded that the appeals court would be within its power to vacate its September ruling.

Let's hope for Mr. Padilla's and America's rights.
Posted on The Human Stain