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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, August 04, 2006

More lessons from the Padilla case

U.S. citizen Jose Padilla was kept by the Bush administration in solitary confinement in a Naval prison for 3 1/2 years without being changed with any crime and without even having access to a lawyer. He was finally charged with crimes only because the administration wanted to avoid a ruling from the Supreme Court on whether it is constitutional for the U.S. government to arrest U.S. citizens on American soil and then keep them indefinitely locked away without charges of any kind -- a power which not even the British King possessed, at least not since the Magna Carta.

When the Bush administration finally indicted Padilla, they did so with extremely vague allegations that had nothing to do with the original public accusations that Padilla was a diabolical "Dirty Bomber" trying to detonate a radiological bomb in an American city. And now that the Bush administration is being forced to actually prove its accusations against Padilla in a court of law -- the way the Founders required -- they are having great difficulty doing so:

With much fanfare, the U.S. government charged Jose Padilla last fall in a South Florida terror-conspiracy indictment. He was brought to Miami in January under heavy guard, shackled hand and foot, helicopters flying overhead. But now a federal judge says the case against him appears "very light on facts."

In the last week, U.S. District Judge Marcia Cooke ordered prosecutors -- for the second time -- to provide more details to make their case against Padilla and codefendants Adham Amin Hassoun and Kifah Wael Jayyousi, accused of being part of a North American terrorist cell that supported Islamic jihad abroad.

Cooke said the Miami federal prosecutors' initial response was "insufficient."

The article details numerous infirmities and inconsistencies in the Government's case against Padilla.

I have no idea whether Jose Padilla worked with terrorist groups or is guilty of crimes, but the point has always been that, as a U.S. citizen, it is a grave assault on the most basic constitutional guarantees to incarcerate him without charging him with a crime and then securing a conviction in a criminal trial by a jury of his peers -- just the way the Constitution quite unambiguously mandates.

But what is clear is that the accusations against Padilla have been suspect from the very beginning, not least because the "evidence" supporting the accusations seems to have been procured via torture. And the obvious difficulties which the administration is encountering in proving his guilt demonstrates the reason we don't allow the government to imprison U.S. citizens based solely on the say-so of the President.

All of this powerfully underscores the most glaring deceit in the arguments made by Bush followers with regard to virtually everything concerning terrorism. The fact that the Bush administration suspects someone of being a "terrorist" or accuses them of being one doesn't mean that they actually are guilty. Thus, opposition to the use of torture is not about "treatment given to terrorists," and advocating due process for detainees before they are killed is not about "giving rights to terrorists," and opposition to warrantless eavesdropping is not about "blocking surveillance of terrorists," and demanding that U.S. citizens not be imprisoned without due process is not about "fighting terrorism with litigation." People are not "terrorists" and cannot be treated as such -- particularly not U.S. citizens -- just because the Bush administration thinks they might be or claims that they are.

Under our system of government, the President doesn't have the power to unilaterally declare people guilty and then treat them as criminals. That is the very power which the Founders sought to prohibit and, as always, the most astonishing and revealing fact is that these principles are even in dispute. The Padilla case, as has been true from the beginning, is one of the most powerful illustrations of the very real dangers -- not abstract dangers, but very real ones -- posed by this administration's claims to unlimited executive power.

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