Affront to Civil Liberties

October 3, 2005 • Commentary
This article appeared in the National Law Journal on October 3, 2005.

When lawlessness broke out in New Orleans in the aftermath of Hurricane Katrina, martial law was declared, military troops were called in to restore order and the news media were on top of the story. Unfortunately, when more dramatic legal developments occur and when such episodes are of much greater legal consequence, the media sometimes fail to give them the attention they deserve.

The Sept. 9 court ruling concerning Jose Padilla, an American citizen locked up in a military prison in South Carolina for three years, is a case in point. The ruling should send shockwaves through the American public since the decision seriously undermines constitutional rights.

A federal appellate court ruled that constitutional rules that apply to the police do not apply to military personnel. That is a sensible proposition when the military is conducting operations in a war zone like Iraq, or in a disaster zone like New Orleans, but it is an alarming idea when the U.S. military is given carte blanche.

A blanket denial of due process

But that is the upshot of the Padilla ruling. The federal government has been given a green light to deprive Americans of their rights to due process. No arrest warrants. No trial. No access to the civilian court system. You may not be able to see it on television, but this court decision is the equivalent of a legal hurricane‐​and it is no exaggeration to say that this is a level 5 storm with respect to its potential havoc for civil liberties.

Federal agents arrested Padilla at O’Hare International Airport in Chicago just after he arrived on a flight from Pakistan. The feds claim that Padilla fought against U.S. troops in Afghanistan, escaped to Pakistan and returned to the United States to perpetrate acts of terrorism for al‐​Queda. Instead of prosecuting Padilla for treason and other crimes, President Bush declared Padilla an “enemy combatant” and ordered that he be held incommunicado and interrogated by military and intelligence personnel.

Padilla has not yet had an opportunity to tell his side of the story. For two years the government would not even permit Padilla to meet with his court‐​appointed attorney, Donna Newman. Newman has nevertheless defended Padilla’s rights, arguing that the president does not have the power to imprison Americans without trials.

Bush has not made any dramatic televised address to the country to explain his administration’s attempt to suspend habeas corpus and the Bill of Rights, but his lawyers have been quietly pushing a sweeping theory of executive branch power in legal briefs before our courts.

The president’s lawyers stress that America is at war and that the “laws of war” are now in effect. By “laws of war,” they mean that the president has assumed broad powers as commander‐​in‐​chief so that he can “protect the country.” The constitutional rights of the citizenry, in this view, are no longer the law of the land. A federal appellate court has now validated this ominous paradigm of military law.

Does this mean that black helicopters will be coming to the suburbs to take our friends away for questioning? Of course not. Still, even a subtle and selective use of the military to imprison American citizens on American soil ought to concern people regardless of political affiliation.

Setting a dangerous precedent

One must remember that military personnel do not always travel in armored vehicles with rifles at the ready. Last year, Army intelligence officers appeared at the University of Texas shortly after a student organized a conference on Islamic law and women’s rights. The agents questioned students and demanded a roster of attendees. After the incident came to light, the Army apologized. The key point is this: The American legal system is based upon precedent. If the president can order the military to lock up one citizen without an arrest warrant or without justifying the arrest, after the fact, to an impartial federal judge, the president can rely upon that precedent to imprison others next week.

Bush often speaks about his desire to bring freedom to the people of Iraq, but some of his policies are undermining freedom here at home. Make no mistake. The Padilla precedent constitutes a break in our constitutional levee, which protects liberty by restraining government power. We should not wait until our constitutional levees collapse to appreciate the danger that the “laws of war” pose to freedom in America. Free societies do not just “happen.” They must be deliberately created and deliberately maintained.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice