Not the Way America Is Supposed to Work

A Miami jury has convicted Jose Padilla of charges unrelated to those that were alleged when he was first incarcerated more than five years ago. Some will argue that the guilty verdict justifies Padilla’s characterization as an enemy combatant and his extended detention, incommunicado, without charges filed. Nothing could be further from the truth. Jose Padilla is a U.S. citizen, protected by the U.S. Constitution against unreasonable seizure and deprivation of liberty without due process. He was denied his rights.

In the case of suspected terrorists, the stakes are immense. So a powerful argument can be made for changing the rules to provide for preventive detention in narrowly defined circumstances. But if we do change the rules, the process cannot be unilateral − implemented by executive edict without either congressional or judicial input. And it cannot be law on-the-fly, with no knowledge of the rules by anyone other than the executive officials who are responsible for their enforcement. In the end, Padilla may have deserved the treatment he received, perhaps worse; but for those of us concerned about the rule of law, the Padilla episode is not the way America is supposed to work.

Padilla Verdict

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.

RomneyCare Falls A Bit Short

When Mitt Romney signed the Massachusetts health care plan into law, he bragged that it would provide universal health care coverage. In fact, he still says that on the campaign trail. After all, the plan does mandate that everyone in the state buy health insurance. The state has done pretty well at the welfare aspects of the bill, signing up some 150,000 people for subsidized insurance (families of four earning as much as $62,000 are eligible for subsidies). But the latest reports from Massachusetts indicate that of 170,000 people who are uninsured but have incomes too high for subsidies, only 17,500 have complied with the mandate so far. Someone should have pointed out that the Massachusetts mandate is probably unenforceable and almost certainly not going to achieve universal coverage. Oh, that’s right, we did.

Invasion of the Cheney Snatchers

This eerie video clip of a 1994 interview with Dick Cheney has been making the rounds in recent days:

In it, Cheney defends the Bush 41 administration’s decision not to proceed to Baghdad after expelling the Iraqi army from Kuwait. His description of the downsides of occupation now sounds downright prophetic.

Seeing this clip reminded me of a personal experience along similar lines. Back in 1998, when I was running Cato’s then-new Center for Trade Policy Studies, we held a conference on unilateral economic sanctions called “Collateral Damage: The Economic Cost of U.S. Foreign Policy.” And our luncheon speaker at that event was none other than Halliburton CEO Dick Cheney.

Looking back at the transcript of his talk, you can see that it’s not just Cheney’s views of the wisdom of occupying Iraq that have undergone an amazing transformation. So has his attitude about engaging versus confronting Iran:

[O]ur sanctions policy oftentimes generates unanticipated consequences. It puts us in a position where a part of our government is pursuing objectives that are at odds with other objectives that the United States has with respect to a particular region.

An example that comes immediately to mind has to do with efforts to develop the resources of the former Soviet Union in the Caspian Sea area. It is a region rich in oil and gas. Unfortunately, Iran is sitting right in the middle of the area and the United States has declared unilateral economic sanctions against that country. As a result, American firms are prohibited from dealing with Iran and find themselves cut out of the action, both in terms of opportunities that develop with respect to Iran itself, and also with respect to our ability to gain access to Caspian resources. Iran is not punished by this decision. There are numerous oil and gas development companies from other countries that are now aggressively pursuing opportunities to develop those resources. That development will proceed, but it will happen without American participation. The most striking result of the government’s use of unilateral sanctions in the region is that only American companies are prohibited from operating there.

Another good example of how our sanctions policy oftentimes gets in the way of our other interests occurred in the fall of 1997 when Saddam Hussein was resisting U.N. weapons inspections. I happened to be in the Gulf region during that period of time. Administration officials in the area were trying to get Arab members of the coalition that executed operation Desert Shield/Desert Storm in 1991 to allow U.S. military forces to be based on their territory. They wanted that capability in the event it was necessary to take military action against Iraq in order to get them to honor the UN resolutions. Our friends in the region cited a number of reasons for not complying with our request. They were concerned with the fragile nature of the peace process between Israel and the Palestinians, which was stalled. But they also had fundamental concerns about our policy toward Iran. We had been trying to force the governments in the region to adhere to an anti-Iranian policy, and our views raised questions in their mind about the wisdom of U.S. leadership. They cited it as an example of something they thought was unwise, and that they should not do.

So, what effect does this have on our standing in the region? I take note of the fact that all of the Arab countries we approached, with the single exception of Kuwait, rejected our request to base forces on their soil in the event military action was required against Iraq. As if that weren’t enough, most of them boycotted the economic conference that the United States supported in connection with the peace process that was hosted in Qatar during that period of time. Then, having rejected participation in that conference, they all went to Tehran and attended the Islamic summit hosted by the Iranians. The nation that’s isolated in terms of our sanctions policy in that part of the globe is not Iran. It is the United States. And the fact that we have tried to pressure governments in the region to adopt a sanctions policy that they clearly are not interested in pursuing has raised doubts in the minds of many of our friends about the overall wisdom and judgment of U.S. policy in the area.

Note again that Cheney gave these remarks in 1998 – when Iran’s nuclear ambitions were already well known, and two years after the Khobar Towers bombing in which Iran was believed to be complicit.

9/11 may not have changed everything, but it sure changed Dick Cheney.

[cross-posted from www.brinklindsey.com]

What Price (Restricted) Freedom?

About six months ago, I did an elegant back-of-envelope calculation about the Western Hemisphere Travel Restriction Initiative’s cost in terms of lost freedom and commerce. I came up with an estimate of about half a billion dollars (net present value).

If that estimate was a little too airy, here’s a clearer cost of WHTI: $944 million over three years. That’s the direct cost we’re paying through the State Department for the WHTI rules.

So now we’re at around $1.5 billion. Will $1.5 billion+ in damage to the United States’ people, possessions, infrastructure, and interests be averted thanks to WHTI? No. As a security measure, it’s Swiss cheese.

WHTI does more harm than good. It is a self-injurious misstep - precisely what the strategy of terrorism seeks to cause.

Evil in Qataniyah

More than 250 people were killed in four coordinated truck bombings in northern Iraq, in the villages of Qataniyah and Jazeera. The victims were adherents of the Yazidi faith, which predates Islam in the Middle East. Public radio’s “The World” interviewed Dutch scholar Philip Kreyenbroek, who has written books about Kurds and the Yazidi faith. He explained that Muslims and Christians sometimes denounce Yazidis as Satanists, claiming that they worship evil. But that’s not true, Kreyenbroek said; they don’t worship evil, they just don’t think it exists.

I wonder if they do now.

An Apology Is in Order

Yesterday, I posted to this blog regarding a paper by Michelle Bucci and Bill Beach of the Heritage Foundation. My post consisted almost entirely of one sentence from that paper; I offered no context.

Taken by itself, that lone sentence could be interpreted to mean that the authors support an income tax increase. I never for a moment considered that to be the authors’ position; the sentence was interesting to me for that ambiguity, not because I thought the authors support such a thing.

I have since been informed that my post read like an accusation, rather than something playful. A cheap shot, really. That was not my intention, and I apologize to Bucci, Beach, and their colleagues at Heritage.

I sometimes disagree with Heritage scholars, but it is important to me to keep those disagreements friendly and respectful. Here it seems I failed, and it wasn’t even over a disagreement. Sorry, guys. Yeeeouch, indeed.