Hoaxing the Supreme Court
For the president to claim power to lock up Americans on executive say-so for an indefinite period of time without charges or legal representation remains a terrible and frightening idea, and nothing in the release of Padilla information changes that in any way. - Harvard Law School professor and former deputy attorney general Philip Heymann, Newsday, June 2
The person who is locked up, doesn't he have a right to bring before some tribunal . . . his own words? - Supreme Court Justice Ruth Bader Ginsburg, during oral arguments in the Jose Padilla and Yaser Hamdi cases, April 28
After two years during which Jose Padilla has been imprisoned in a windowless cell in a navy brig on American soil without chargesand in the final days of the Supreme Court's arriving at a decision in his caseDeputy Attorney General James Comey suddenly hurled a list of detailed accusations against this "enemy combatant" as designated by George W. Bush.
Comey was not speaking in a court-room but rather in a nationally televised press conference. Padilla could not reply to those denunciations in his own defense. Nor could his lawyers. The government had at last allowed them to speak to their client twice after the Supreme Court had surprised the Bush team by taking Hamdi's case. But their meetings with their client were listened to and videotaped by the government.
Moreover, one of Padilla's lawyers, Andrew Patel, tells me that the government has ruled that Padilla's attorneys cannot tell anyone what Padilla would say in answer to any government accusations because everything he told his lawyers is classified. Nor could his lawyers ask him about what he said in his interrogations.
James Comey, therefore, was free to say anything he wanted as he claimed that during the two years of interrogation Padilla "admitted" to certain assignments from Al Qaeda. Also, said Comey, those "admissions" were corroborated by a number of high-level Al Qaeda terrorists who have been interrogated about Padilla while in United States custody. But some of those sources told conflicting stories.
Was there any coercion to get those admissions? Keep in mind how information was extracted from our prisoners in Iraq, Guantánamo, and the Bagram Air Base in Afghanistan. Are there any photographs of Padillaor his alleged co-conspiratorsbefore and during their "admissions"?
Comey insists Padilla was not mistreated. Trust your government! Accepting Comey's stories of plots to blow up apartment buildings in New York, Florida, and Washington, among other plans, the Daily Newswhich trusts the governmenttitled its June 2 editorial headline "American Traitor."
But even the government's documents, to which Comey referred, concede in a footnote, as The New York Sun reported, that "Padilla tried to downplay or deny this commitment to Al Qaeda and the apartment building mission. He said he never pledged an oath of loyalty and was not part of the Al Qaeda. He said he and his accomplice proposed the dirty bomb plot [for which he was first arrested at O'Hare Airport] only as a way to get out of Pakistan and to avoid combat in Afghanistan. He said he returned to America with no intention of carrying out the apartment building operation."
How many Americans who heard or read Comey's extrajudicial public indictment of Padilla know about that footnote, to which Comey only barely referred? But Comey did admit that all of Padilla's connections to Al Qaeda that were "admitted" by Padilla could not be entered as evidence in an American courtroom because they took place without the presence of one of Padilla's lawyers. Again, trust your government!
In his statement, Comey insisted that the release of this "information" was in no way intended to influence the Supreme Court's decision as to whether American citizen Padilla should be entitled to the basic due process of appearing for himself in an American courtroom. The government, said Comey, just wanted to clarify for the public the reason for George W. Bush's most controversial unilateral decision, to take away from this American citizen the right to habeas corpus. This is the oldest act in the English-speaking world, to have a judge decide whether someone is being lawfully detained. Had he been actually tried, said Comey, his lawyer would have told him to be silent.
I do not believe Mr. Comey. I believe this last-minute Hail Mary plea was in fact aimed at the most powerful woman in the country. During Supreme Court oral arguments in the Padilla and Hamdi cases, Justice Sandra Day O'Connor seemed likely, as often happens, to be the fifth and deciding vote, and of all the justices, she was the most conflicted as to how to rule. Will the government strategy backfire because the sudden fusillade against Padilla was so transparently an attempt to manipulate the Supreme Court?
I'm not so sure. O'Connor, unlike Ruth Bader Ginsburg, can be swayed. However, the essential question before the courtwhich will decide whether future presidents have the authority to follow Bush into creating legal black holes for "enemy combatants"was made clear during the oral arguments in this exchange between Justice John Paul Stevens and Deputy Solicitor General Paul Clement.
Stevens: "Are there any cases in the international field, or the law anywhere, explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from them is a legitimate justification?"
Clement: "I don't know that there are any authorities that I'm aware of that address exactly what you're talking about."
This definition of "enemy combatants" was a totally lawless act by George W. Bush. And as for Comey's devotion to the rule of law in this case, James Gordon Meek of the Daily News reported that during the Comey press conference, Comey, when asked about Padilla's future, said:
"We could care less about a criminal case [for Padilla] when right before us is the need to protect American citizens and to save lives. We'll figure out down the road what we do with Jose Padilla."
Where is that place "down the road," Mr. Comey, in the Constitution of the United States?
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