October 12, 2006 3:36PM

Enemy Combatants

Glenn Greenwald has a good post on the latest developments in the Jose Padilla case.

By way of background, President Bush has claimed the power to arrest any person in the world and to lock that person up indefinitely without a trial. So long as Bush issues an “enemy combatant” order to his Secretary of Defense and not his Attorney General, the imprisonment is supposedly legal because Bush is acting as the Commander‐​in‐​Chief during a time of war. Most Americans are probably unaware that Bush believes that he can use the same powers here in the USA. He has already done so. That’s what the Jose Padilla case is all about and it is why the legal community follows it so closely. A legal precedent is being set here.

Padilla is the American citizen who was apprehended at Chicago’s O’Hare airport. The feds locked him up as an “enemy combatant” for some three years and just a few months ago they moved him to civilian court to face criminal charges in Florida. Now that Padilla is out of the hole of solitary confinement, we are starting to learn for the first time what went on at the Naval brig during the years that he was held there incommmunicado. The legal filings by Padilla’s lawyers are disturbing–stress positions, sleep deprivation, etc. (A word of caution: To my knowledge, Padilla’s lawyers are making allegations. We do not yet know if the government disputes the allegations in whole or in part. Greenwald is correct to point out that Congress recently approved such interrogation tactics against prisoners.)

Why does this matter? Well, whatever one’s view on the propriety of our government’s policies concerning the wartime capture and treatment of non‐​citizens overseas, most everyone will agree that if we are serious about limited government, we must keep an eye on potential overreaching here at home. Liberty in America rests upon a system of checks and balances. The police can arrest us at any moment, but the judiciary can “check” lawless police actions fairly quickly.

Mr. Bush (and his successors) can now bypass the judiciary by simply issuing an “enemy combatant” order. That means the liberty of every American rests upon nothing more than the grace of the White House (actually lower level bureaucrats). Some may shrug and say “This is war. Captured terrorists don’t belong in fancy hotels. Heck, some harmless drug offenders might be raped or stabbed in a U.S. prison.” 

True enough, but isn’t that like saying “Yes, the casualties are mounting in Iraq, but so what. Didn’t ya know the U.S. lost 6,821 Marines at Iwo Jima, a single battle?” My point is that we ought to be careful about how we intend to assess the actions of the government. Let’s strive to keep the government limited and to minimize casualties, mistakes, and injustices.