Detention Contention

Jacob Sullum | March 1, 2005

A federal judge in South Carolina has given President Bush the rebuke he deserves for claiming the authority to uniltaterally lock up anyone he declares an "enemy combatant" for as long as he wants without charges, trial, or access to a lawyer. U.S. District Judge Henry F. Ford ruled that the government must either charge Jose Padilla, the alleged (rumored?) "dirty bomb" plotter who was detained in May 2002 at O'Hare International Airport in Chicago, or let him go. "The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant," Ford wrote. Keeping Padilla imprisoned at the naval brig in Charleston "would not only offend the rule of law and violate this country's constitutional tradition," he said. "It would also be a betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."

The U.S. Supreme Court did not deal with Padilla's case when it addressed the enemy combatant issue last summer because it concluded that the challenge to his detention had been brought in the wrong circuit. But if the Bush administration's handling of Yaser Esam Hamdi is any indication, it will hang onto Padilla until it loses its last appeal, then release him rather than trying to prove its case. Depending upon your point of view, this will demonstrate either the necessity or the danger of Bush's enemy combatant policy.

Comments

|3.1.05 @ 10:42AM|#

Why does Judge Ford hate America?

|3.1.05 @ 10:59AM|#

I'm not following. How does this demonstrate the necessity of Bush's enemy combatant policy?

|3.1.05 @ 11:15AM|#

Because somebody the government asserted was a bad guy might be given his freedom. In certain quarters, this is considered prima facie evidence of a serious problem.

|3.1.05 @ 12:45PM|#

saw-whet:

His release will prove that the enemy combatant policy is necessary because of what the government will say when he's released:

< government spokesman>
The administration strongly regrets the Supreme Court's order that Mr. Padilla be released. Mr. Padilla is a dangerous terrorist, and his release will jeopardize national security. Unfortunately, trying him in a court of law would require that we disclose highly classified information. We therefore have no choice but to release this dangerous terrorist, and hope that Congress will amend the Constitution to make future releases like this unnecessary.
&/lt government spokesman>

|3.1.05 @ 2:35PM|#

Saw Whet asks, "How does this demonstrate the necessity of Bush's enemy combatant policy?"

Joe responds, "Because somebody the government asserted was a bad guy might be given his freedom."

Evan retorts: there's a guy across the street who I assert is a bad guy. Damned if anything's been done about it. What the government asserts is of no consequence in this situation. The crux of our legal system is, innocent until proven guilty. If they can't even dream up something to charge this guy with, much less actually argue to convict him, then the government has no business with him.

Along other lines, I still don't understand how this demonstrates the necessity of Bush's policy. Even if I were to agree that this man getting his due process was necessarily a bad thing, I still don't see how, if the end result of Bush's policy is: this guy gets back on the street, rather than being charged with something, this demonstrates a necessity for it. No, it demonstrates the folly of it. If he Padilla really was a danger, then the feds would surely have something to charge him with. Otherwise, the only net loss is Padilla's freedom, and the Bill of Rights. Necessary? What particular "point of view" would yeild that interpretation, Jacob?

Gary Gunnels|3.1.05 @ 5:35PM|#

Bush is big on talking about freedom abroad and eviscerating it home when he feels that its apropos. This should give you an idea how devoted it he is to the former. :)

|3.1.05 @ 9:44PM|#

Evan writes: "The crux of our legal system is, innocent until proven guilty."

Sorry to nitpik, but I think that should probably be "presumed innocent until proven guilty". The alternative would be a legal system that exists only to take innocent people as input and process them until they're guilty. IOW, Lizzie Borden was either guilty of hacking her parents to death or she wasn't, independent of any court's judgement.

While I agree that Padilla should either be charged or released, I'll play Devil's Advocate and cite history. During World War 2, Churchill is supposed to have known that several British villages were targeted for Luftwaffe attack based on intelligence gathered from decrypted German transmissions. These codes were decrypted because the British had cracked the Enigma code. In many cases, Churchill would NOT order the evacation of the targetted villages, because to do so would be to reveal to the Nazis that their codes had been broken, which would result in their abandoning their current leaky code for one that the Allies couldn't decode. In order to win the War, Churchill sacrified the lives of many of these villagers.

It's possible that in order to win a case against Padilla, the Bush Administration would have to reveal (and hence give up) sources of intelligence that are more valuable that Padilla's hide. But returning to your point, the price inflicted on due process is too high to pay, much higher than the alternative price of a slight increase in the chances that a released Padilla will go on to detonate a dirty bomb.

|3.1.05 @ 11:15PM|#

Daniel writes:
"chances that a released Padilla will go on to detonate a dirty bomb."

If Padilla is truly guilty but Bush won't try him for other reasons, and then Padilla is released, I seriously doubt he will get much chance to do any bombing. He will either "disappear" (in the Latin American sense) or he will have a shadow detail of FBI agents until the day he dies. Either way, he won't have much chance of assembling a dirty bomb.

|3.2.05 @ 11:22AM|#

Wow. So much hatred for the President here that people cheer the potential release of a self-admitted member of a foreign terrorist organization who was trained to murder their countrymen.

Truly, I, and the rest of the Founding Fathers, would love to shake the hands of every one of you young patriots!

|3.2.05 @ 11:58AM|#

I realize I'm a little late with this clarification, but I was alluding to the Bush administration's position that "enemy combatants" are too dangerous to be released yet cannot be charged in criminal court because prosecuting them would reveal classified information, compromise intelligence sources, or simply pose too great a challenge given the exigencies of the war on terrorism. (That last argument was more credible in the case of Hamdi, who was captured in Afghanistan, than in the case of Padilla, who was arrested on U.S. soil.) From this perspective, the Padilla's court-ordered release would prove the need for keeping him locked up without judicial review. The problem, of course, is that the justification for imprisoning him is precisely what is at issue, and the dangers of letting any president (not just Bush, George) make that determination unilaterally should be clear to anyone who values due process and the rule of law.