As I have been writing for the past two years, it is impossible to overstate the importance of the Jose Padilla case. The power assumed by the U.S. military and the Bush administration in the Padilla case constitutes what is arguably the most ominous and dangerous threat to the freedom of the American people in our lifetime. Fortunately, this past Monday a U.S. district court in South Carolina put the quietus to the assumption and exercise of such power. The court’s ruling was a major victory for freedom, the Constitution, the Bill of Rights, and the rule of law. Unfortunately, however, the government is appealing, hoping to overturn the district court’s judgment.
(Underscoring the vital importance The Future of Freedom Foundation has placed on the Padilla case and the threat that it poses to the American people, we have published more than 40 original articles and commentaries on Padilla since his arrest and we have linked to countless editorials and op-eds on Padilla from other publications in our FFF Email Update. A list of FFF’s orginal articles and commentaries is posted at the end of this article. )
Jose Padilla was arrested at a Chicago airport almost three years ago on suspicion of having conspired to commit terrorism. The ordinary procedure — the procedure that has been followed in the United States since our nation’s founding — would have been to charge him with federal crimes dealing with terrorism, indict him, bring him to trial before a jury, and, if convicted, sentence him. That’s the way the U.S. criminal justice system has worked for more than 200 years.
With Padilla, the Pentagon has tried to do something completely different, something that is alien to the American way of life, something that was obviously modeled on the procedures employed by the military regimes in Chile and Argentina, many of whose military officers were trained in detention and torture techniques by the Pentagon’s very own School of the Americas, during their “wars on terrorism” in the 1980s. Securing a statement from President Bush that Jose Padilla was an “enemy combatant” in the “war on terrorism,” the Pentagon took the position that it could bypass the entire federal criminal justice system set up by the Constitution, including rights and guarantees stretching all the way back to Magna Carta. These included habeas corpus, due process of law, trial by jury, and right to counsel.
The reason the Padilla doctrine is — and should be — so critically important to the American people is that if the federal courts uphold it, the doctrine will apply not just to Padilla but to all Americans. The reason that the Pentagon has limited the exercise of such power to only one American arrested on U.S. soil is obvious: it attracts much less attention from the public and, therefore, does not appear so threatening.
But make no mistake about it: If the Pentagon’s power to arrest Americans for terrorism and punish them without federal court interference is upheld by the courts, the floodgates will be open to omnipotent military power in America. American life will never be the same again. Life will be transformed by such power in ways unimaginable. No one will be safe from military arrest, including newspaper editors, government critics, and dissidents. Any person — any person — deemed to be an “enemy combatant” and taken into military custody will have no recourse to avoid punishment, except for the “good faith” of the Pentagon, the government organization that is responsible for plunging this nation into one of the most shameful torture, sex abuse, rape, and murder scandals in its history, not to mention the resulting cover-up.
There can be no doubt that the Pentagon is salivating over the possibility of wielding the same power over U.S. citizens that it has been wielding over foreigners ever since 9/11. This includes the power to send detainees to U.S. gulags in different parts of the world for indefinite detention and punishment without interference from the courts. It includes the outsourcing of detainees to friendly authoritarian regimes so that they, rather than U.S. officials, can do the torturing on behalf and for the benefit of the U.S. government. In fact, the Pentagon itself would admit that the very reason it set up its primary gulag in Cuba was to avoid the constraints of the Constitution and interference from the federal judiciary in its treatment of prisoners and detainees.
Fortunately, in a testament to the wisdom and foresight of our ancestors, who established the judicial branch of government with independent judges, the federal judiciary has stopped the Pentagon dead in its tracks, especially given the Supreme Court’s recent decision in favor of Yaser Hamdi and the South Carolina district court’s decision in favor of Padilla.
Several months ago, over the vehement objections of the Pentagon, whose position toward the Court was essentially “Butt out of our operations!” the Supreme Court in Rasul v. Bush held that the Pentagon’s operations at Guantanamo Bay were subject to judicial review and, moreover, that the Guantanamo Bay detainees had the right to question their detention in federal court. The Court also ordered federal officials to either charge or release Hamdi, an American, whom the Pentagon had held for some two years as an “enemy combatant” in the war on terrorism.
And that’s exactly what Judge Henry F. Floyd ordered in his ruling on Monday in South Carolina — either charge Padilla or release him. Relying on the Constitution, the Bill of Rights, and decisions of the U.S. Supreme Court, Floyd made it clear that the omnipotent power that the Pentagon has been seeking over the American people, as represented by the Padilla case, was not going to stand here in the United States. In essence, he held that that’s not what America and the American way of life are all about.
Significantly, Floyd rejected the government’s ludicrous claim that it has made since 9/11 — that terrorism is an act of war rather than a criminal offense. You’ll recall that ever since 9/11 we here at The Future of Freedom Foundation — unlike so many supporters of the “war on terrorism” — have been making exactly that point — that terrorism is a crime, not an act of war. No matter how vicious those attacks, no matter how many people were killed or injured, the fact remains that the attacks fall within the same criminal-justice parameters as the 1993 attack on the World Trade Center and the Timothy McVeigh attack on the Oklahoma City federal building. The accused in those cases were arrested; indicted; accorded due process of law, right to counsel, and trial by jury; and were convicted. That’s the way the system works and is supposed to work. That’s in fact why Zacarias Moussaoui, whom the feds claim was the 20th hijacker on 9/11, is being tried in federal court rather than being thrown into a military dungeon, tortured, and punished without being accorded the procedural protections in the Bill of Rights.
Unfortunately, the Pentagon continues to fight tooth and nail for the power represented by the Padilla doctrine. That’s why the government immediately announced plans to appeal the ruling. The military dearly wants the power to arrest any American and jail and punish him without federal court interference. They know that Jose Padilla and the federal judiciary are the only barriers standing in their way.
We cannot rely on Congress to stand up for the Constitution and to protect us from the military. Congress has remained silent and supine with respect to the Padilla doctrine and civil liberties ever since 9/11. Even worse, the subservience that many members of Congress have paid to the Pentagon is almost embarrassing.
We can hope only that the federal judiciary stands firm in the defense of the Constitution, the Bill of Rights, and the criminal-justice system that has distinguished our nation from all others in history — stands firm in the defense of our freedom.
Equally important, we must continue to raise the consciousness of the American people to the threat that the Padilla doctrine poses to our way of life, especially given the possibility that the president and the Pentagon might try to persuade the Pentagon’s friends in Congress to grant the military the power over the American people that it has so persistently asserted in the Padilla case.
Jose Padilla has been incarcerated by the U.S. military for almost three years. No charges. No indictment. No trial by jury. No due process of law. For most of that time, no right to counsel. That’s the way things were done in Chile under General Pinochet and Argentina under General Videla. That’s, in fact, the way things were done under Stalin in the Soviet Union and Hitler in Germany.
It’s true that Padilla might well have committed the crimes of which he is accused. If so, then the government simply needs to charge him with those crimes. Otherwise, as Judge Floyd ordered, federal officials must release him. That’s the way we do things in America. That’s how things are done in a free society.
Jacob Hornberger is founder and president of The Future of Freedom Foundation. Send him email.
FFF Original Articles and Commentaries on Jose Padilla Case
Liberty Again at Risk by Sheldon Richman (Aug. 2002)
If This Is Freedom, What Exactly Is Dictatorship by Jacob G. Hornberger (April 2003)
Our Lives and Liberty Turn on Moussaoui by Jacob G. Hornberger (June 2003)
Crossing the Rubicon by Jacob G. Hornberger (July 2003)
We’re Number One … but Is That Good? by Jacob G. Hornberger (Oct. 2003)
Freedom without Due Process of Law by Jacob G. Hornberger (Dec. 2003)
Judicial Blows Against Military Tyranny by Jacob G. Hornberger (Dec. 2003)
An Important Message to FFF Supporters by Jacob G. Hornberger (Dec. 2003)
Jacob Hornberger Blog by Jacob G. Hornberger (Dec. 17, 2003)
Jacob Hornberger Blog by Jacob G. Hornberger (Dec. 19, 2003)
Jacob Hornberger Blog (Jan. 9, 2004)
Jacob Hornberger Blog (Jan. 22, 2004)
Freedom vs. the Pentagon in the U.S. Supreme Court by Jacob G. Hornberger (Feb. 2004)
Lessons About Our Constitution from Abu Ghraib by Jacob G. Hornberger (May 2004)
Jacob Hornberger Blog (June 4, 2004)
Jacob Hornberger Blog (June 12, 2004)
Jacob Hornberger Blog (June 14, 2004)
Jacob Hornberger Blog (June 29, 2004)
Jacob Hornberger Blog (June 30, 2004)
The Padilla Doctrine Doesn’t Infringe on Freedom – It Destroys It by Jacob G. Hornberger (June 2004)
A Supreme Reason to Celebrate the Fourth of July (June 2004)
Torture as Due Process by James Bovard (July 2004)
Padilla, Hamdi, and Rasul: Charge Them or Release Them (Jan. 28, 2005) by Jacob G. Hornberger (July 2004)
Pentagon Learns About the Sixth Amendment by Jacob G. Hornberger (July 2004)
Jacob Hornberger Blog (July. 5, 2004)
Jacob Hornberger Blog (July. 22, 2004)
Jacob Hornberger Blog (Aug. 12, 2004)
Jacob Hornberger Blog (Aug. 24, 2004)
Jacob Hornberger Blog (Sept. 3, 2004)
Jacob Hornberger Blog (Sept. 27, 2004)
The Bill of Rights: Antipathy to Militarism by Jacob G. Hornberger (Sept. 2004)
Jacob Hornberger Blog (Oct. 12, 2004)
Jacob Hornberger Blog (Oct. 21, 2004)
Does John Ashcroft Understand the Constitution? by Jacob G. Hornberger (Oct. 2004)
The Bill of Rights: Searches and Seizures by Jacob G. Hornberger (Oct. 2004)
The Bill of Rights: The Right to Keep and Bear Arms by Jacob G. Hornberger (Nov. 2004)
Jacob Hornberger Blog (Nov. 15, 2004)
Jacob Hornberger Blog (Nov. 27, 2004)
Jacob Hornberger Blog (Dec. 14, 2004)
Jacob Hornberger Blog (Dec. 16, 2004)
Jacob Hornberger Blog (Dec. 27, 2004)
Augusto Pinochet and the Conservative Threat to America by Jacob G. Hornberger (January 2005)
Jacob Hornberger Blog (March 1, 2005)