Protecting Security In a Nation of Laws

August 19, 2003 • Commentary

There is a “very real potential” that al‐​Qaeda will strike again on U.S. soil, warns Attorney General John Ashcroft, which makes it even more difficult to criticize the Bush administration’s efforts to combat terrorism.

But while the U.S. Constitution is not a suicide pact, it also means nothing unless it applies in difficult and unpopular circumstances. Like the case of Jose Padilla.

Several groups, ranging from the conservative Rutherford Institute to the left‐​wing People for the American Way to the libertarian Cato Institute, have filed a joint amicus curiae brief in federal appeals court to defend Padilla’s right to an attorney. The Defense Department is holding Padilla in isolation, after President Bush designated him an “enemy combatant.”

Fighting a decentralized terrorist organization with cells in scores of nations isn’t easy. One can’t rely on Marquess of Queensberry rules in fighting people willing to hijack airplanes and fly them into buildings. Thus, whatever the criticism of the imprisonment of nearly 700 detainees at the U.S. Navy station at Guantanamo Bay, Cuba, “enemy combatants” are not entitled to the protections of the Constitution.

But Padilla, accused of plotting an attack with a “dirty” (nuclear) bomb, is a U.S. citizen arrested in the United States. The Constitution applies to him.

Obviously, to defend Padilla’s constitutional rights is not to defend Padilla. If he is guilty as charged, he should never leave prison — if he isn’t executed.

Potential mass murderers deserve swift, sure and severe punishment. Genuine justice demands no less.

However, justice must be done, which means the truth must be determined through a procedure consistent with the Constitution.

Padilla was arrested more than a year ago. He has not been charged with any crime. While his case was pending in federal court, the Defense Department placed him in a Navy brig. He is being held incommunicado, unable to see or talk with family or attorneys.

The reason, explains the administration, is that President Bush has designated Padilla an enemy combatant. Yet the Constitution gives the president no such power.

Yes, being commander in chief carries implicit powers. But they are not absolute.

For instance, seizing enemies overseas in a war zone, notes the amicus brief, “is a far cry from claiming an unfettered power to detain without charge any unarmed person seized outside a zone of active combat, particularly those on U.S. soil who are already subject to criminal process.”

In short, had Padilla been a Saudi citizen and a member of al‐​Qaeda seized in a raid on an Afghan terrorist camp, he should expect, and would deserve, such treatment. If he were a U.S. citizen detained under the same circumstances, he would have little cause for complaint.

But Padilla is a U.S. citizen and was arrested in the United States.

The president’s case would be stronger had Congress authorized him to designate U.S. citizens as enemy combatants. Congress has not.

In 1971 Congress passed 18 U.S.C., section 4001, to prevent the detention of U.S. citizens without a statutory basis. The congressional authorization for a military response after the terrorist attacks of Sept. 11, 2001, made no mention of arresting U.S. citizens on U.S. soil. The Patriot Act provided for the detention of aliens, not citizens, in the United States suspected of terrorist ties, and only for a temporary period of time, after which they must be charged, deported, or released.

Congress has voted to pay the expense of enemy combatants. But as the amicus brief notes, “Appropriations bills do not authorize government actions; they fund them.”

If Congress wanted to depart so dramatically from settled law, it would have to do so explicitly. To agree to pay for the imprisonment of foreign terrorists seized abroad is not the same as authorizing the arrest of Americans in America.

Of course, this doesn’t mean that Padilla should be freed. It doesn’t mean that the exact conditions his detention and trial should not reflect the unique security requirements of his case. But it does mean that he must be charged, allowed to defend himself, and tried.

Hard cases make bad law, it is often said, and so it is with Jose Padilla. If any U.S. citizen deserves to be treated as an enemy combatant, he would seem to be the one.

But if he can be designated an enemy combatant, so can any U.S. citizen. If President Bush can designate anyone an enemy combatant, so could President Clinton, whether Bill or Hillary.

That is not a power any president has or should have.

Jose Padilla appears to be a moral monster. Nevertheless, it is important to defend his right to an attorney and a trial. Not out of sympathy for him, but to protect the constitutional liberties of every American.

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