Editor’s note: Yes, George Bush. No, Jose Padilla.
That’s the gist of today’s decision by the U.S. Supreme Court in the so-called Dirty Bomber case. By a margin of six to three, the justices rejected an appeal by Padilla, a Chicago-area man who federal authorities say was part of a plot to set off a radioactive device. He has been held since his arrest in 2002, much of that time incommunicado in a navy brig.
Padilla’s case challenged the president’s authority to declare U.S. citizens enemy combatants and hold them indefinitely. Last year, the government dropped that strategy and moved the Padilla case to a criminal court. The move appears to have paid off.
Here’s a take from the Christian Science Monitor:
“Rather than argue the case on the merits, the Bush administration had undertaken an array of procedural maneuvers that appear to have been calculated to avoid Supreme Court review of the case. Many legal analysts were watching closely to see if the high court would permit the government to benefit from such tactics.
“But in its Monday order, the justices made clear that while they were divided on whether to take up Padilla’s case, a majority was prepared to hear the case should the administration attempt to shift him back into open-ended military custody.”
As Chisun Lee wrote back in 2003, the Padilla case is not just a game of tactics for the lawyers, but rather a case with serious consequences for us all.
A Lifetime in Limbo
Why the “Dirty Bomber” Case Threatens Everyone’s Rights
by Chisun Lee
June 4 – 10, 2003
He disappeared down the rabbit hole.
A year ago this week Jose Padilla, nabbed while on a visit to Chicago, was taken into military custody and sealed off from the rest of the world. To date, the government continues to deny the Brooklyn native a right all Americans take for granted: to tell his side of the story.
The public was told back then that his banishment was their salvation. Attorney General John Ashcroft, the nation’s top law enforcer, revealed in a dramatic announcement via satellite from Moscow, “We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.” The day before, June 9, 2002, President George W. Bush had deemed Padilla so grave a threat to national security that he ordered him held incommunicado until the war on terrorism was over.
The administration says it needs absolute authority when so much seems to be at stake. This is typical of presidents in wartime. But in this war the number and origin of the enemy is unknowable, and decisive victory almost impossible to envision. Padilla could be looking at a lifetime in limbo, deprived of rights that Americans consider fundamental. On the anniversary of his spectacular detention, the battle to get Padilla any kind of hearing, or even access to a lawyer, continues. Meanwhile, his case goes largely unnoticed.
Yet a year of developments in other terrorism-related cases has produced more reasons than ever to question whether the chief executive must simply be trusted—seemingly indefinitely, in this new era of war—to know best. While Jose Padilla, a violent ex-con, may not inspire much empathy, his predicament matters to everyone. If he never gets his day in court, it will mean any American could be jailed for life, without the chance to defend himself, on the president’s say-so.
The “illegal enemy combatant” is a despicable foe, one who ignores international rules of war and fights for an outlaw outfit, like Al Qaeda or the Taliban, rather than for a recognized nation. Unlike the two other U.S. citizens, John Walker Lindh and Yaser Hamdi, who have been put in this category, Padilla was not captured on a foreign battlefield fighting with rogue forces. He was arrested on May 8, 2002, unarmed and carrying a genuine ID, getting off a plane at Chicago’s O’Hare Airport.
Nor was he immediately labeled an enemy combatant. Federal agents had tracked him for weeks based on tips from informants, and at first they detained him as a material witness. They wanted his testimony for a grand jury convened in New York to investigate the 2001 terrorist attacks. Padilla was taken to a high-security federal prison in Manhattan and put in solitary confinement. U.S. district court judge Michael Mukasey appointed Donna Newman, a little-known criminal defender, to represent him. She recalls meeting with him for a total of 20 hours.
It is difficult to put a sympathetic shine on Padilla, though Newman tries. Born in 1970 to a working-class Puerto Rican family in Brooklyn, Padilla grew up in Chicago, where he joined a gang and committed crimes including aggravated battery and armed robbery. He served time in Florida for handgun possession and is said to have converted to Islam in prison.
“He was very confused,” Newman remembers. “He was not angry or outraged. He was very calm, quiet. He made a great effort to understand what was happening and had great confidence in me.” She says Padilla did not express his reportedly radical Muslim views to her.
Padilla’s mother calls her frequently, says Newman, who claims he had gone to Chicago to visit his son. His family are “very concerned and very warm,” she says, but they refuse to speak to reporters. Unlike the family of John Walker Lindh, who spoke with anguish about the misguided youth to Katie Couric and other national outlets, Padilla’s kin are “very press-shy,” says Newman. “But that doesn’t mean they love him any less.”
A month after Padilla was arrested, Newman asked the judge to release her client, who had yet to be charged with a crime and was still being held as a witness. The day before Mukasey was expected to make his decision, the president issued his remarkable order that Padilla was an enemy combatant and should be rushed into incommunicado military custody. He was taken to the Naval Consolidated Brig in Charleston, South Carolina, where he remains today.
Newman didn’t learn of Padilla’s military detention until the next day. She immediately filed a habeas corpus petition, the centuries-old citizen’s tool to protest imprisonment without due process.
Over the next six months, she and her co-counsel, Andrew Patel, exchanged a battery of briefs with the Justice Department. The administration said it knew from confidential informants that Padilla had traveled extensively through Arab and Muslim nations in the late 1990s and early 2000s, meeting with senior Al Qaeda leaders and plotting to build and detonate a radiological bomb in the U.S. The military wanted to hold Padilla indefinitely, not just because he was dangerous but to interrogate him—perhaps, as one intelligence official said, for “years.”
Newman questioned how the administration could pluck an unarmed American from U.S. soil and make such allegations, while denying him the fundamental right to contest them. She immediately began to raise questions about the government’s evidence, zeroing in on a Pentagon document that revealed some informants had not been “completely candid” and “[s]ome information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.”
In December Judge Mukasey ruled that Bush, like all presidents, has the right to hold enemy combatants, even Americans, incommunicado in times of war. But allowing for the possibility that Padilla might not actually be an enemy combatant, Mukasey said the administration would have to face a court challenge and make at least “some evidence” hold up in the end. That challenge, of course, would be feasible only if Padilla were permitted to meet with his lawyers.
The government refused and instead demanded the case be passed up to an appellate court. In April, Mukasey agreed. The parties are waiting for a hearing to be scheduled.
As far as the Bush administration is concerned, anyone who insists Jose Padilla must have his day in court is living in a dream world. Critics, the president’s supporters say, have utterly failed to grasp the magnitude of the times. The U.S. is at war against evil, an elusive foe. In the fight to keep America safe from terrorism, the president claims sweeping authority, even the power to deprive his fellow citizens of due process, if it seems important to national security.
The administration knew that Padilla was nowhere near the point of detonating a bomb when he was arrested. Deputy Defense Secretary Paul Wolfowitz held a news conference to calm the public hours after Ashcroft’s dramatic announcement. “There was not an actual plan,” he said. “We stopped this man in the initial planning stages.” He later said any plotting had amounted only to “loose talk.” White House insiders reportedly were furious at Ashcroft for causing such a scare that the markets briefly plunged.
But after the September 2001 terrorist attacks, a wait-and-see approach is believed unacceptably risky. The administration has tended to operate by the “mosaic” theory, which holds that seemingly innocent, unrelated facts and people can actually belong to a larger, nefarious whole. The focus on sleeper cells reflects a similar view, that the very absence of obvious activity can, counterintuitively, bode ill.
Padilla’s deep captivity is important not just because it keeps him from harming the public, but more so because he is a “very high” counterintelligence asset, according to Defense Department intelligence director Lowell Jacoby. The military is not interested in prosecuting him but rather in interrogating him, Jacoby told Judge Mukasey in January. Any outside contact, especially with a lawyer, would disrupt “the kind of relationship of trust and dependency necessary for effective interrogations.”
Jacoby claimed an impressive track record, reporting, “It is estimated that more than 100 additional attacks on the United States and its interests have been thwarted since 11 September 2001 by the effective intelligence-gathering efforts of the Intelligence Community and others.”
When Time recently ran an article challenging, in part, the detention of foreign combatants at Guantánamo Bay past the reported end of their interrogations, the Justice Department issued a scathing response. “The article implies once we get information out of an Al Qaeda operative telling us how they would like to kill us, the next logical step would be to release them to go carry out such operations—or at least bring in lawyers to facilitate their release,” wrote public-affairs director Barbara Comstock in a letter to the editor that the agency disseminated widely.
The Justice Department was more diplomatic with the Voice. An official said last week, “The fact that America enjoyed so many years of peace prior to the attacks of September 11 has made war, and the things that go along with it, somewhat new to many Americans. This lack of experience with long-existing wartime authorities may mean that some misunderstand the steps that the government is lawfully taking to protect our nation from terrorism.”
Department spokesperson Monica Good-ling said Bush was wielding these vast wartime powers with the noblest of intentions. “The United States has every interest in preventing harm from coming to the American people, but zero interest in detaining random, law-abiding Americans,” she said.
Goodling also referred the Voice to a friendly outside expert, Robert Turner, co-founder of the Center for National Security Law at the University of Virginia and a former federal official. He was less restrained.
“The nature of war is that a lot of decisions have to be made quickly. One of the realities is, bad things happen to good people,” said Turner. “Even if Padilla is innocent, which I believe he isn’t, he’s certainly not one of the top 100 tragedies of this war. The idea that we would rather let him kill 20,000 people rather than detain him when there is reasonable doubt—that’s a tough question.”
Yet when other terrorism suspects have been able to challenge the government in court, the truth has turned out to be tamer than officials initially claimed. The administration may wish to be taken at its word on Padilla, but its record raises some unwelcome doubt.
In announcing charges against young men in Detroit and Lackawanna, New York, federal officials gave the impression they had disrupted major sleeper cells and thwarted determined terrorists. But in Detroit, it has emerged that prosecutors derived their most damning information from a convicted con artist, currently in their custody, who told them he knew some of the four suspects.
In Lackawanna, six accused Arab Americans recently pleaded guilty to the relatively minor charge of providing “material support” to terrorist affiliates. They face sentences of up to 10 years, and despite the adamant claims of federal investigators, they were not found to have participated in a terrorist conspiracy.
In February a congressional audit revealed that, of the slew of convictions federal prosecutors had reported since September 2001 as terrorism-related, nearly half—132 out of 288—in fact had nothing to do with terrorism. And while at least 750 immigrants were detained and questioned by federal investigators immediately following the 2001 terrorist attacks, not one was charged in relation to the tragedies.
But the case of “American Taliban” John Walker Lindh, also deemed at one point to be an enemy combatant, casts the most substantive doubt yet on the administration’s claims of sound judgment. Attorney General Ashcroft said at the start that Lindh was guilty of “conspiracy to kill nationals of the United States” as an “Al Qaeda-trained terrorist.” Yet after a rigorous challenge in court, the government’s original 10 counts against him shrank to one, and it was not directly related to terrorism.
Unlike Padilla, Lindh was captured among hostile forces, in Afghanistan, but he nonetheless received a civilian trial and had the opportunity to mount a stellar defense. His father, a corporate lawyer with California’s reigning energy supplier, quickly retained powerhouse San Francisco attorney James Brosnahan. According to his firm biography, Brosnahan, in over 40 years in complex litigation, has repeatedly been ranked among the top trial lawyers in America and has twice argued before the U.S. Supreme Court. A thorough dissection in the March 10 New Yorker graphically details how miserably Lindh was treated by federal captors before his lawyers got involved. Afterward, Brosnahan and company blew holes through the government’s inflated case.
With resources ample enough to send a private investigator to Afghanistan to verify Lindh’s exact location on September 11, 2001, his lawyers negotiated for him to plead guilty to one count of contributing “services” to the Taliban, for which he is serving 20 years in a medium-security prison. In perhaps its most effective move, the team seized on indications that the feds had violated Lindh’s right to due process—most egregiously by interrogating him for 54 days without a lawyer. As a part of his plea agreement, Lindh is now aiding government investigators.
Those less fortunate could end up like Padilla, especially if the administration is less judicious in naming enemy combatants than it claims to be. Federal prosecutors reportedly used the possibility of such designation—and its implied loss of contact with a lawyer and other rights—as leverage during plea negotiations in Lackawanna. Lawyer Patrick Brown told the Voice that his client, Shafed Mosel, and at least one other suspect were offered immunity from being named enemy combatants as part of the deal if they would plead guilty. Brown says the U.S. attorney’s office gave him the impression that a change in status “wasn’t just a hypothetical, that it could happen. Getting the commitment that they wouldn’t seek it was them really giving us something.”
In a way, Padilla is fortunate. It is be-cause of the window during which he was held as witness and provided a lawyer—and because his lawyer mounted a spirited challenge despite being unable to contact her client—that the world knows as much as it does about his case. (In fact, the public likely knows much more than he does. The Defense Department will not confirm that Padilla is receiving lawyer Newman’s mailings of legal papers.)
“If he didn’t initially have counsel, who would know?” says Newman. She says she has no idea “what’s being done to him” by the military interrogators. She read in the New Yorker that Lindh was “sometimes kept blindfolded, naked, and bound to a stretcher with duct tape. . . . fed only a thousand calories a day, and was left cold and sleep-deprived in a pitch-dark steel shipping container,” and she knows that her client is less protected than Lindh was. Padilla technically shares the same status as the foreign combatants at Guantánamo Bay. They have been the subject of international concerns about torture, and as of last week, 18 of them had attempted suicide a combined total of 27 times. The Justice Department referred questions about Padilla’s physical state to the Department of Defense, which did not return a Voice call.
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 innocence—that 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 citizenship—and presumably the rights that go with it—from 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.
Research assistance: Jorge Morales and A.P. Smith