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There appears to be no requirement that a president inform the public when he locks up an American as an enemy combatant. When Steven Brill, author of After: How America Confronted the September 12 Era, asked "one of Ashcroft's closest aides" shortly after Padilla's detention what insurance an American had against secret arrest and imprisonment, the aide replied, "Well, I guess his family could speak out if he's missing, and if that creates a political furor, then the President would be accountable at the next election."
Asked last week if the Bush administration would ever hold a citizen in secret, Justice Department spokesperson Goodling would only say, "We don't comment on hypothetical situations that do not exist." But she said the government was currently holding no other American enemy combatants incommunicado besides Padilla and Hamdi, who was taken prisoner in Afghanistan.
Georgetown law professor David Cole provocatively suggests a truly Kafkaesque possibility about Hamdi: "We don't even know for sure if Hamdi was captured on the battlefield. It's treated as undisputed fact, but I question that a court can determine whether someone was captured on the battlefield without some adjudication of that. We're just taking the government's word for it."
Cole says everyone has a stake in the enemy combatant question. "The authority of the executive branch to go out and unilaterally pick up any U.S. person anywhere in the world and lock him up without any forum in which the person could assert his innocencethat ought to be a frightening prospect for any of us," he says.
It is difficult to imagine a time when the administration would let Padilla walk out of the brig, a free man. Cole suggests that even if the courts permit Padilla to mount a challenge through his lawyers, he will likely still be deemed detainable on the government's evidence and will continue to be held as an enemy combatant.
There is a possibility that Padilla will eventually be prosecuted. Ashcroft told author Brill, "Detaining a person who is an enemy combatant does not preclude subsequent prosecution." It remains to be seen how material obtained through intensive interrogation would be viewed in a trial, and whether the government could seek a punishment as severe as death, based on such coerced information.
Executing American enemy combatants is well within the realm of reason, says national security law expert Turner. He says presidents may lawfully condemn U.S. citizens to death during wartime. Last week, overseas news outlets caused a stir by reporting that the U.S. was considering a death tribunal at Guantánamo Bay. According to those accounts, the foreign enemy combatants there could be tried with no right to appear before a jury or to appeal. Asked whether the Bush administration would subject Padilla, or any American, to such a procedure, spokesperson Goodling said simply, "The Justice Department doesn't comment on hypothetical situations."
Some have said Congress should step in before Padilla's plight gets that ugly. Says Cole, "Congress could enact a statute that would set up procedures and provide for some rights to the individuals" detained as American enemy combatants. Newman has not reached out to legislators, believing it inappropriate in her current role, but she says, "Congress should be involved. They have a better understanding of the politics."
The Voice asked the judiciary committee chairs and ranking members in both houses for their thoughts on Padilla, but on this key case concerning fundamental American rights, only Senator Patrick Leahy, Democrat and former chair, replied. "As a U.S. citizen arrested in the United States," Leahy said, Padilla has the right to "contest the validity of his detention." Depending on the outcome in court, he said, "Congress should evaluate the need for further legislative action," and his office mentioned legislation he had introduced "to ensure due process for enemy combatants captured abroad."
But if an early draft of the administration's Domestic Security Enhancement Act, popularly known as Patriot Act II, becomes an official bill, Congress will have no choice but to tackle the question of due process for accused Americans. One section of the draft would give the executive branch more power to keep secret any information on detained terrorist suspects. Another section would strip citizenshipand presumably the rights that go with itfrom Americans affiliated with any group the attorney general designated as a "terrorist organization," even if they did not engage in unlawful activity themselves.
For now, the question of the administration's rightful power over American enemy combatant Jose Padilla awaits a hearing before the Second Circuit Court of Appeals. Meanwhile, ardent supporters of the White House make a compelling point: The ultimate judge of the president's actions does not reside in a courtroom or on Capitol Hill, but rather in the voting booth.