Jose Padilla is the American citizen who was arrested five years ago at Chicago’s O’Hare airport because he was suspected of working with al-Qaeda. At that time, Attorney General John Ashcroft said Padilla had come to the U.S. from Pakistan to set off a “dirty bomb.” President Bush declared Padilla an “enemy combatant” and locked him up in a military brig with no access to family, lawyers, or the civilian court system. That move turned into the most important constitutional issue that has arisen since 9/11. President Bush says he can arrest any person in the world and lock that person up in a military prison. No arrest warrant. No trial. No judicial check via the great legal writ of habeas corpus.
We filed a brief (pdf) in the Padilla case when it reached the Supreme Court in 2004. The Supreme Court did not reach the merits of the controversy at that time. A majority of the Court found a jurisdictional problem and basically said that the lawsuit should have been filed elsewhere. Justice John Paul Stevens dissented and this is how he described the matter:
At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. … [I]f this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the forces of tyranny.
That was the dissent. The majority dismissed the lawsuit on jurisdictional grounds.
Another lawsuit was promptly filed – and just when looked as if the Supreme Court was about to rehear the case and declare President Bush’s enemy combatant policy to be illegal, Bush administration lawyers moved Padilla back into ordinary civilian custody to be tried on criminal charges. That move was presumably to keep the controversial claim of executive power away from the Supreme Court, i.e. no need to hear the case because the circumstances have changed.
The criminal trial finally concluded today with a guilty verdict.
What’s it all mean? Well, we should all want the intelligence and police agencies to be on the lookout for persons connected with al-Qaeda or other terrorist groups. No argument there. The real issue, as Justice Stevens noted, is the means by which the government goes about that mission. I did not follow the criminal trial closely because the key issues surrounding Padilla’s imprisonment (military custody and the legality of the interrogation tactics that were used against him) were not in play–though they may now come up on appeal.
Although the federal government was able to persuade a jury that Padilla broke the law and was involved in a murderous conspiracy with al-Qaeda, we should all be troubled that this prisoner was locked up for five years before an independent tribunal could affirm the allegations. If the wheels of justice turned slowly in this case–and they unquestionably did–it means the same thing might happen tomorrow to another American citizen right here in the U.S. On paper, the Constitution guarantees everyone “speedy trials” so as to minimize the hardship on innocent people who get charged with crimes they did not commit. Reasonable people can disagree about what “speedy” means, but I’m sure that five years imprisonment ain’t speedy. We need to be vigilant about the weakening of that guarantee, as well as all the others.
For some additional Cato work about the Padilla case, go here, here, and here.
For more about the constitutional record of the Bush administration, go here.