The case of Jose Padilla has done much to harm the credibility of an administration that would be well-served to develop from it a newfound appreciation of the rule of law.
This law has evolved over centuries as the best way to allow government to be vigorous in pursuing its legitimate activities while protecting the respect for individual dignity and freedom.
It is precisely that legacy of dignity and civilized behavior by rulers and ruled alike, after all, that our leaders tell us is at stake in the global war on terror.
Jose Padilla, you’ll remember, is the U.S. citizen and convert to Islam who has been held as an “enemy combatant,” incommunicado in a Navy prison in South Carolina with no charges being filed for more than three years. When he was arrested at Chicago’s O’Hare airport in 2002, then-Attorney General John Ashcroft said he had been planning to build a radioactive “dirty bomb,” and, later, that he might have been planning to blow up apartment buildings. Last week a federal grand jury indicted Padilla and four other men on charges of traveling overseas to support and join in terrorist activities and conspiring to commit terrorist acts.
The previous allegations about Padilla were not in the indictment.
Alas, rather than a conversion to the sturdy traditional conservative principle that when people are arrested they should be charged with a crime and stand trial — rather than being jailed without charges as happens in totalitarian regimes — this looks like a transparent effort to keep the case out of the hands of the Supreme Court. Bringing the indictment moots the complaint Padilla is taking to the high court, that he has been held without being charged, in violation of the U.S. Constitution.
The Bush administration must answer a petition filed by Padilla’s lawyers for the Supreme Court to hear his case. The high court had accepted a previous writ of certiorari (request to intervene and hear the complaint) but sent it back on a technical venue issue. And in the related case, decided in June 2004, the court had written that “a state of war is not a blank check for the government when it comes to the rights of the nation’s citizens.”
It is easy to believe, then, that this indictment has less to do with what Jose Padilla did or didn’t do than with the administration’s desire to avoid another slap from the Supreme Court. A trial is not expected to begin until September, and it is likely to drag on. So Padilla will have been confined for at least four years, and perhaps until President Bush leaves office.
Robert Levy, a constitutional scholar at the libertarian Cato Institute, believes Congress is as culpable as the administration.
“Assume this is a really dangerous guy most of us would prefer to see locked up,” Levy said. “But under current law there wasn’t enough evidence to do it. If we have really entered a new phase of terrorist activity in which current law is insufficient to handle the threat, it is up to Congress to change the law. But Congress made no move to do so. Instead, it stood idly by and let the administration take the heat for twisting the law and the Constitution.”
This indictment was overdue years ago. Its timing reflects poorly on every official involved in this case.