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The Case Of Jose Padilla: Alleged But Not Proven, No Slippery Slope -- Avalanche Is Burying Our Civil Liberties
The Case Of Jose Padilla: Alleged But Not Proven
September 1, 2002
THE CASE OF Jose Padilla, the American Muslim locked up as an "enemy combatant" in a South Carolina brig, has been largely overshadowed by the other major enemy combatant case -- that of Yaser Esam Hamdi. It has moved more slowly and with fewer fireworks. But it is even more disturbing. For not only is Mr. Padilla an American citizen being held indefinitely without charge or access to counsel, but he was yanked out of the civilian justice system when the burdens of that system grew too heavy for prosecutors' tastes. Unlike Mr. Hamdi, who was captured in Afghanistan -- where the government contends he was attached to a Taliban unit -- Mr. Padilla was arrested in Chicago in May by FBI agents under a material witness warrant issued by a federal court in New York. Mr. Padilla's case is, therefore, a real test of how easily the president may, by declaring someone an enemy combatant, deprive him of all the protections the Bill of Rights promises -- even after first subjecting that person to the normal criminal process.
Last week, the Justice Department filed its answer to a challenge to his detention by Mr. Padilla's lawyers, who have not been permitted to meet with their client in his military prison. As in Mr. Hamdi's case, the answer took the form of a brief declaration by Defense Department official Michael Mobbs. The statement is more substantial than the one he filed in Mr. Hamdi's case, but once again, Mr. Mobbs claims no firsthand knowledge of the evidence he cites. And once again, the government takes the view that the court may look no further than the allegations contained in this six-page document.
The allegations certainly are disturbing. According to the declaration, Mr. Padilla "has been closely associated with known members and leaders of the Al Qaeda terrorist network." He trained at al Qaeda camps and "met with senior Osama Bin Laden lieutenant Abu Zubaydah," whom he approached "with [a] proposal to conduct terrorist operations within the United States." He discussed a plan "to build and detonate a 'radiological dispersal device' . . . within the United States, possibly in Washington, D.C." And "it is believed that Al Qaeda members directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of Al Qaeda."
But for the long-term detention without trial of an American citizen, our system typically demands more than allegations. In this instance, the Mobbs declaration itself provides reasons for caution. The government concedes that its intelligence sources "have not been completely candid about their association with Al Qaeda and their terrorist activities" and that "some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials." Without some reality check, there is no way to have confidence that Mr. Padilla is what the government claims.
On Wednesday, the United States indicted five people in Detroit for conspiracy to support international terrorism. Is there a reason, other than the weakness of a case Attorney General John D. Ashcroft initially trumpeted, that Mr. Padilla cannot be similarly dealt with? As a matter of law, there may be times when even U.S. citizens should be designated enemy combatants or prisoners of war; it has happened before. But to yank an American out of the court system and then maintain, purely on the government's word, that he is not entitled to challenge the evidence against him is a breathtakingly radical act. As his lawyer, Donna Newman, put it, "Is [the evidence] written on the bathroom wall? Is it firsthand knowledge, secondhand knowledge, third, fourth? And how can I refute it? I can't see my client." Eventually, the courts will have to confront the question -- as in the Hamdi case -- of whether the government's say-so alone can carry the day. Among the many confrontations between civil liberties and the war on terror, the government is advancing no contention more dangerous.
No Slippery Slope -- Avalanche Is Burying Our Civil Liberties
September 1, 2002
We learn from Germany's chief prosecutor that the Sept. 11 plot was hatched in 1999 by a terrorist cell in Hamburg. The accused money man in The Reckoning, Moroccan Mounir El Motassadeq, is behind bars, awaiting trial.
We learn from a federal grand jury in Detroit that a cell affiliated with al-Qaeda got false documents for its terrorist pals to enter the United States illegally and even taped surveillance at Disneyland and the MGM Grand hotel in Las Vegas, possibly to blow them up. Five radical Muslims have been charged.
We learn from prosecutors in Seattle that a 36-year-old American, James Ujama, is accused of attempting to set up an al-Qaeda training camp in Oregon and designing Web sites that advocate "global violent jihad."
And what do we learn from Attorney General John Ashcroft?
It's one Big Secret.
Ashcroft continues to obstruct justice in the name of national security. Dozens, perhaps hundreds, of "material witnesses" have been held for months and still, no charges. Two Americans -- a Saudi born in the U.S.A. and a Puerto Rican -- are being held as "enemy combatants" without official charges filed against them or access to a lawyer.
Why the double standard? If there's evidence against the two, it's incumbent on the government to produce it for the courts. In my gut, I don't believe either one is squeaky clean, but justice in this country is not based on gut feelings. It's based on evidence and constitutional protections. The government must never hold people indefinitely without any say from a judge.
Yet Ashcroft apparently plans to expand his assault on the Constitution. He's now talking about creating holding camps for U.S. citizens he would stamp with the "enemy combatant" label. Would those sent to camps go before a judge first? Of course not.
This is war, Ashcroft and his supporters say. During times of war certain freedoms must be given up, the chorus goes. We can't make public evidence that might send secret commands to sleeper cells to attack us again.
Baloney. No civil libertarian is talking about handing clues to the terrorists. Certainly not I. Heck, I wanted the so-called American Taliban, John Walker Lindh, hanged for what he did -- fighting with the enemy against his own country. Instead, little Johnny got a public trial and a tap on the wrist because his family has money and he was depicted as a young, lost soul.
The case of Yaser Esam Hamdi, caught fighting for the Taliban, appears to be virtually identical to Lindh's -- except that the Saudi born in Louisiana is being held on some floating Navy brig without official charges. The Justice Department has told a judge that the evidence against Hamdi is a secret for the sake of national security -- case closed.
Even under military rules, a tribunal would be required to screen prisoners to determine if they are enemy combatants. But not in this supposed war with no end. No, under Ashcroft's rules the president makes that determination without any check from any other branch of government.
In the case of Jose Padilla, Ashcroft made a big public stink that Padilla's arrest had thwarted a plot to detonate a "dirty" radioactive bomb in New York or Washington. Later, the administration backtracked, but Padilla still is being held incommunicado.
People, wake up!
This isn't a slippery slope. This is an avalanche burying our civil liberties and giving one man and only one -- without any constitutional check and balance -- the power to determine who's good and who's an evil-doer. That's what Saddam Hussein does. That's what Fidel Castro does. That's not what our American president is supposed to do.
It's frightening to see how Ashcroft's supporters have turned any criticism of his tactics into a litmus test on who's a "real American." Wave your flags all you want. My patriotism defends our Constitution not any one man.
If this were Bill Clinton closing deportation hearings, as the Bush administration has done, which now two courts have found unconstitutional -- if it were Franklin D. Roosevelt holding people without charges and without the ability to see a lawyer -- I would be blasting those tactics, too.
Because America's strength always has been its people's zeal to hold up constitutional rights as a brake on authoritarianism. There have been ugly moments in our history, for sure -- centuries of slavery, the internment camps for Americans of Japanese descent during World War II. Yet each time, Americans came around to see those injustices for what they were -- abominations.
United this nation will stand against terrorism, but an assault on our civil liberties must never stand.