The Padilla Shuffle: preempting a Supreme Court challenge it couldn't win, the Bush administration has preserved its unconstitutional power to imprison U.S. citizens at presidential whim.
In July 2002, then-Attorney General John Ashcroft, while visiting Moscow, announced that Padilla had been detained on presidential order as a participant in a plot to detonate a radiological or "dirty" bomb in the United States. This charge disappeared altogether from the new indictment; instead, Padilla is accused of participating in a "North American support cell" for a radical Jihadist network stretching from Egypt to Kosovo--a network, significantly, that also received aid from Washington, including direct military aid during the 1999 bombing of Yugoslavia.
Ducking a Fight
The November 22 indictment against Padilla came just as his case was being prepared for a Supreme Court review. The administration faced a November 28 deadline to respond to a petition filed on Padilla's behalf before the Supreme Court. The administration would not want a ruling by the Supreme Court about the legitimacy of its actions because it lost a ruling in a similar case. In a June 2004 decision dealing with the military detention of Yasser Essam Hamdi, an American-born child of Saudi nationals who is considered a U.S. citizen under present legal standards, the court ruled that the administration was required to permit judicial review of the case, observing that "a state of war is not a blank check for the government when it comes to the rights of the nation's citizens." Hamdi was removed from military custody and deported.
The Bush administration has repeatedly demonstrated that preserving the quasi-dictatorial powers of a "war president" is its highest priority. Thus it filed a criminal indictment, thereby recognizing Padilla's due process rights, as a way of protecting the president's presumed powers from a legal challenge the administration probably would have lost.
The administration's priorities were made clear by Attorney General Alberto Gonzalez in his November statement announcing the new indictment. "Under the president's directive," declared Gonzalez, "[Padilla] is no longer being detained by the Department of Defense as an 'enemy combatant.'" As is typical of high-ranking officials in the Bush administration, Gonzalez was not inclined to defend the constitutional basis for the president's assumed power to detain Padilla without trial. In response to a question about that matter, the attorney general snapped: "The president was authorized to detain Mr. Padilla as an enemy combatant. I will leave it at that."
How, exactly, was Mr. Bush "authorized" to suspend habeas corpus and imprison a U.S. citizen for three and a half years without any judicial recourse? Like Napoleon crowning himself because there was no mortal he recognized as his superior, Mr. Bush assumed that power of his own volition. The "directive" issued by Mr. Bush to release Padilla for trial is redolent of regal presumption: "I hereby determine that it is in the best interest of the United States that Jose Padilla be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him."
Implicit in that royal flat is the assumption that the president can and will order such detentions at whim. This point was not lost on Timothy Lynch, head of the Cato Institute's Project on Criminal Justice: "Today's move is an attempt to take this action away from the Supreme Court so that they can continue to exercise these powers, maybe not against Padilla but against other Americans in the next few years."
Once again, the remarks of Attorney General Gonzalez were designed to reserve those unconstitutional powers for future use. "We take each individual, each case, case by case," Gonzales said. As the New York Times noted in a legal analysis: "The upshot of that approach, underscored by the decision in Padilla's case, is that no one outside the administration knows just how the determination is made: whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility or to charge him in court."
Jacob Hornberger, president of the Future of Freedom Foundation, warns that the core principle established in the presidential order to detain Padilla would justify the imposition of "omnipotent military power in America." "American life will never be the same again" if that principle is established, he continues. "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."
"With Padilla, the Pentagon has tried to do something ... that is alien to the American way of life," elaborates Hornberger. "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 [guarantees of] rights ... stretching all the way back to Magna Carta. These included Habeas Corpus, due process of law, trial by jury, and the right to counsel."
"Best Interest" of ... Whom?
Detaining Padilla in 2002, the public was told, was a vital necessity to protect the American public because he was involved in a "dirty bomb" plot, a charge that does not appear in the new indictment against him. Nothing has changed in the interim regarding the evidence against Padilla, yet the administration yielded up an opportunity to hold him indefinitely. Therefore, we have to conclude that the president is endangering the public by releasing Padilla from military detention--because it is in the "best interest" of our nation to protect presidential power at all hazards.
In a June 1, 2004 address, then-Deputy Attorney General James Comey outlined the "sobering story" of Padilla's alleged involvement in radical Islamic terrorism, explaining that much of what he described "has been uncovered because Jose Padilla has been detained as an enemy combatant and questioned...."
Comey continued: "Had we tried to make a case against Jose Padilla through our criminal justice system, something that I as the United States attorney in New York could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope--pray, really--that we didn't lose him."
Padilla, Comey insisted on behalf of the administration, "was more than a criminal defendant with the broad menu of rights that we offer in our great criminal justice system. On May the 8th of 2002, a soldier of our enemy, a trained, funded and equipped terrorist, stepped off that plane at Chicago's O'Hare; a highly trained al Qaeda soldier who had accepted an assignment to kill hundreds of innocent men, women and children by destroying apartment buildings; an al Qaeda soldier who still hoped and planned to do even more by detonating a radiological device, a dirty bomb, in this country; an al Qaeda soldier who was trusted enough to spend hour after hour with the leaders of al Qaeda ... an al Qaeda soldier who had vital information about our enemy and its plans; and lastly an al Qaeda soldier who, as an American citizen, was free to move in, within and out of this country."
Now, however, the Bush administration is willing to permit the same Jose Padilla to face trial, and the public to face the same risks described in such alarming detail --rather than allowing the president to confront a Supreme Court challenge that he would most likely lose.
The November 22 indictment lists Padilla and four others--Adham Amin Hassoun and Mohamed Hesham Youssef, of Broward County, Florida; Kifah Wael Jayyousi of San Diego; and Canadian citizen Kassem Daher--as co-conspirators in a North American support cell for "Mujahideen groups waging violent jihad" overseas. "It was the purpose and object of the conspiracy to advance violent jihad ... for the purpose of opposing existing governments and civilian factions and establishing Islamic states under sharia [religious law based on the Quran]," asserts the indictment.
Padilla and his cohorts are plausibly accused of providing material and financial assistance for jihadist groups in Chechnya, the Balkans, and Afghanistan. The indictment makes mention of several figures referred to as unindicted co-conspirators. No direct mention is made, however, of the most significant unindicted co-conspirator in this plot: the government of the United States of America.
The indictment against Padilla is based on the principle that those who participate materially in any element of the conspiracy are implicated in all of its illegal activities. One specific undertaking of that plot, as listed in the indictment, was support for radical Islamic guerrillas in Kosovo, who were engaged in an insurrection to tear the province away from the government of Serbia.
Counts 56, 58, 60, 63, and 71 of the indictment describe activities of Padilla and his co-defendants in support of the Muslim insurrection in Kosovo, which was led by the so-called Kosovo Liberation Army (KLA)--a terrorist network allied to Osama bin Laden, funded by heroin smuggling, and boasting a hybrid political pedigree that includes both militant Marxists and the World War If-era Balkan militias organized by the Nazis. (See "Diving into the Kosovo Quagmire" in our March 15, 1999 issue.)
Despite the fact that the KLA was officially identified by the State Department as a terrorist group, Washington provided material support for the group through the CIA, beginning in 1998. This was roughly the same time, according to count 56 of the indictment, that Padilla and the other members of his "North American support cell" became involved in the guerrilla war in Kosovo. Various members of that cell, including Padilla, acted as couriers and donors for small sums provided to Islamic militants in Kosovo; those sums apparently did not exceed $5,000 on any particular occasion.
By way of contrast, the U.S. government, through the CIA and other channels, provided much larger sums of money, as well as sophisticated communications gear and battlefield intelligence; and it mounted a multi-billion dollar, 78-day bombing campaign against Serbia to compel that nation's government to surrender control over the province. Under the supervision of the UN and NATO, the KLA was transformed from a terrorist group into the de facto government of Kosovo.
With Washington's help, the KLA has accomplished its objectives, which were also among the goals being pursued by the conspiracy in which Padilla was allegedly involved.