This Could Be You

Wednesday, September 28, 2005

He was arrested May 8, 2002 in Chicago and since that time he has been confined to a 5' x 7' windowless constantly-lit cell located in a naval brig in South Carolina. His name is Jose Padilla and regardless of his past crimes or alleged plots he is an American citizen being held without a charge, without access to court or a lawyer and without contact from the outside world.

Earlier this month, on September 9th, a three-judge panel of the Fourth U.S. Circuit Court of Appeals ruled in favor of the Bush administration, confirming the authority to detain Padilla without charges. The case has been appealed and will come before the U.S. Supreme Court sometime in the future. Until then Mr. Padilla sits in his cell unaware of his fate.

Before going forward, it is important to be aware of Title 18, section 4001 (a) of the U.S. Code passed by Congress more than 30 years ago which states: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." This law alone makes the detention of Mr. Padilla illegal but it is not all. The 5th Amendment to the U.S. Constitution states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Jose Padilla was arrested after his flight from Switzerland to Chicago touched down. Although he had no bomb-making materials with him, he was detained first as a material witness to the 9-11 attacks. A warrant signed by U.S. District Court Judge Michael Mukasey from New York authorized the arrest and transfer of Padilla to the Metropolitan Correctional Center in Manhattan. The same judge appointed Donna Newman as Mr. Padilla's lawyer.

The case against Mr. Padilla changed drastically on June 11, 2002 when Judge Mukasey, reportedly acting on a request from Theodore Olsen, solicitor general, vacated Mr. Padilla's warrant and released him to the custody of the Department of Defense. It is at this time that Jose Padilla lost all rights granted to U.S. citizens as he was labeled an "enemy combatant". There is a glaring problem with the designation "enemy combatant". For one, Mr. Padilla was not picked up on a battlefield or in a war zone. Second, there were no weapons or weapon making information in Mr. Padilla's possession.

The case itself has been well traveled throught the court system in the 3 years since Jose Padilla's "arrest". The Cato Institute, the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute filed a friend-of-the-court brief in Padilla v. Rumsfeld and the journey began.

The Second District Court of Appeals in New York City ruled in favor of Jose Padilla, declaring his detention to be illegal and unconstitutional. The Bush administration appealed this ruling with the U.S. Supreme Court. The court refused to rule on the case but did declare that the Second District Court had no jurisdiction, ordering the case to be heard by the Fourth Circuit Court of Appeals in Virginia (they have jurisdiction over South Carolina).

The Fourth Circuit Court of Appeals in Virginia ruled that the lawyers for Jose Padilla had improperly named Donald Rumsfeld as the Respondent, thus bogging the case down in more bureaucracy. The court ruled the warden of the military brig where Padilla is being held should be the Respondent. Donna Newman, his lawyer, argues this judgment claiming: "President Bush, as Commander in Chief, and Secretary of the Defense Rumsfeld ordered and directed Padilla's arrest, the transfer of custody from the Department of Justice to the Department of Defense...and the conditions of his detention..Padilla's absence from this district and his inability to (file a petition for habeas corpus on his own) are due entirely to the actions of Bush and Rumsfeld."

In winning the ruling, the government argued that the New York court lacked the jurisdiction to rule in the case because Mr. Padilla was transferred to South Carolina. Another argument by the government was that the Fourth Circuit Court of Appeals lacked the jurisdiction to summon the President and his cabinet as respondents. Finally, the government challenged Donna Newman's request of a writ of habeas corpus for Jose Padilla. The government questioned her "next friend" status. The habeas statute requires that a detainee sign the petition, or if he is unable to do so, that someone with "next friend" standing must sign. The whole reasoning for Newman signing the petition is because she was and has been denied access to Mr. Padilla. This is in addition to Padilla himself being denied access to anyone involved in the case or the courts themselves. It has become a rock under which Mr. Padilla cannot free himself. How can he sign a petition when he is allowed no access to lawyers?

The facts are that Mr. Padilla did spend time traveling in Egypt, Saudi Arabia, Afghanistan and Pakistan and he was, at the time, a muslim by the name of Abdullah al-Muhajir. The government claims he made contacts with Al Qaeda, became knowledgeable in bomb making skills and conspired to use a "dirty bomb" to blow up apartment buildings in the U.S.. Despite these claims, the evidence or lack thereof is completely circumstantial, at best, with nothing concrete tying Jose Padilla with Al Qaeda or any knowledge of bomb making.

I was going to include a brief biography of Jose Padilla in this story, but that is not fair. Regardless of his past, regardless of the evidence the government may or may not have, the fact is that Jose Padilla is an American citizen being held illegally without charge and without access to the criminal justice system all Americans are entitled to. If the government has a case, then they should charge and prosecute Mr. Padilla to the fullest extent of the law. Is this what America is all about, holding her citizens incommunicado for indefinite lengths of time?

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny." - James Madison (Federalist #47)

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." -Thomas Jefferson, 1789


jmcmaster said...

It is worth noting that the court opninion was written by Judge Michael Luttig who I predict will be the next Bush nominee to the Supreme Court.

jmcmaster said...

Wow I was way off base on that prediction. How dare I suggest that he would nominate a person who was actually a judge, my bad.

Apparently, all that is required to be a Supreme Court justice is a law degree and undying devotion to the Emperor. About your post, though, it is one more example of the emasculation of the constitution by the reich wing warlords.

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