Jose Padilla and habeas corpus

Jose Padilla, a convert to Islam, worked for a charity suspected of possible ties of some sort to terrorists. Following a trip to the Middle East in 2002, Padilla was arrested under a warrant related to the 9-11 attacks. However, before a judge could rule on evidence pertaining to his detention President Bush declared him an enemy combatant with protection from neither the U.S. Constitution nor the Geneva Conventions. He was held without charges for three and a half years. Charges were finally lodged against him but most of those were tossed out by a judge. As a result of his treatment in detention he has deteriorated mentally and may no longer be fit to stand trial.

Padilla represents the danger of unrestrained government power, in particular to our rights held under habeas corpus.

These are Andrew Sullivan’s thoughts in today’s London Times:

The basic principle of Anglo-American liberty for several hundred years has been habeas corpus — the notion that the government cannot detain a citizen without charging him with crimes that can be brought before a court and a jury of his peers. It is the keystone of any notion of a free society. For the first time in the history of the United States, it has been indefinitely suspended, and Padilla is the proof.

Padilla was not charged for three years, but he was accused. He was accused by government sources of being part of a plot to detonate a dirty bomb in an American city; he was accused by talk radio of being John Doe No 2 in the Oklahoma City bombing; and he was accused of plotting terrorist acts in the US.

After three years in solitary confinement, the Bush administration feared its detention of Padilla might be struck down by a court, and so it finally decided to charge him with a crime. The charges it brought in November 2005 included no mention of any dirty bomb, no link to Al-Qaeda, and no charge of conspiracy to commit acts of terror in America. A judge threw out other charges. None of the charges that remain involve actual terrorist activity, just of being connected to a group that may have financed such activity in Bosnia and Chechnya.

So Padilla, an American citizen, was detained without being charged for 3½ years. It was nearly two years before he had access to a lawyer.

… Last week, new photographs surfaced of the way in which Padilla has been treated. He needed to be escorted from his cell to get root canal treatment. Padilla has never exhibited any violent behaviour in detention of any kind, according to his jailers. Yet he was manacled head-to-toe, he was barefoot, and given blackout goggles so he could see no light and soundproof ear-muffs so he could hear nothing. He was escorted by three soldiers in full riot gear, visors and weapons. Suddenly, you get a glimpse of the sadism inflicted on him for three years of total isolation.

Could this still happen? Yes, it could. In fact, if another American citizen were today to be arrested by the president, and declared an enemy combatant, he would be barred from any recourse to the federal courts. The Military Commissions Act — passed in the last week of the outgoing Congress before the recent elections — stripped the courts of any jurisdiction over new military commissions set up to try and convict American citizens.

Here’s the language: “Notwithstanding any other law (including section 2241 of title 28, United States Code, or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial, or judgment of a military commission convened under this section, including challenges to the lawfulness of the procedures of military commissions under this chapter.”

So habeas corpus is over in America. The president can now detain any citizen he so designates, remove him from the judicial system and subject him to a military commission, with much weaker rules than a civilian court. Torture is formally banned, but torture techniques such as waterboarding are still at the president’s discretion.

More than two centuries after the construction of the US constitution, almost eight centuries since Magna Carta, Americans are at the mercy of a new king, who can jail without charges and torture at will.

The rationale? A war that has no definable end. The constitution itself declares that habeas corpus is inviolate except in cases of invasion or rebellion. But under this president, the constitution no longer applies. You want proof? Remember Jose Padilla. No one in Washington has.

You can read the entire column here.