Habeas Be Hanged

August 12, 2003
The Connecticut Law Tribune, August 11, 2003
An ennobling idea held by many Americans is that the United States fights noble wars.  We live in a nation made great by our embrace of fundamental liberties and liberal tolerance.  When we wage war, we do so to defend or advance those freedoms.  And we cleave to those aspirations of fairness, civility and mercy in how we wage war.  We believe we fight just wars, for just purposes, in just manner.  Americans adhere not to savagery, but to the rule of law.
 
Any student of history, however, can recite chapter and verse of how our nation has subverted those ideals in past quests.  And the current case of Jose Padilla sadly illustrates how we are again abandoning our fundamental principles to obtain a veneer of security.
 
Padilla, a U.S. citizen, is suspected of being a “material witness” with knowledge of an Al-Qaeda bomb plot.  He was arrested in May of 2002 at Chicago’s O’Hare Airport, and brought to federal district court to be arraigned.  Before that could happen, however, the U.S. government entered the U.S. Bureau of Prisons facility where Padilla was being held, seized him and transported him to a military brig.  Well over a year later, there Padilla still sits – having never been charged with any crime, barred from talking to his lawyers, his family, or anyone.
 
Jonathan Freiman, a senior associate at Wiggin & Dana in New Haven and senior counsel for the Lawyers Committee For Human Rights, filed an amicus brief in mid-August on behalf of the committee and five public policy groups – The Cato Institute, People for the American Way, The Constitution Project, The Rutherford Institute and the Center for National Security Studies – that eloquently argues the illegality of Padilla’s treatment.
 
Although there is statute and case law supporting the military imprisonment of enemy combatants captured in war zones, there is no such authority for the military abduction of U.S. citizens on U.S. soil.  In the communist hysteria of the 1950s, Congress passed the Emergency Detention Act, which did allow such questionable practices.  But facing up to its own mistakes, Freiman notes that Congress explicitly repealed that law in 1971, and set new rules outlawing the detention of U.S. Citizens.  Since that time, the law of the land is simple:  “No citizen shall be...detained by the United States except by an Act of Congress.”
 
Padilla may be a terrorist.  Or he may be an innocent bystander, unjustly accused.  Our Constitution, our rule of law, is designed to give U.S. citizens their day in court, and the right not to be held indefinitely by the government on vague charges.  Padilla’s treatment is grossly opposed to our basic notions of fairness.  This nation was founded on principles that directly contradict what the executive branch is doing in this case.
 
“No Congressional action justified this lawless entry, seizure or incommunicado detention,” Freiman wrote.  “To the contrary, the Executive’s action runs brazenly afoul of the constitutional principles of separation of powers and the statutory law that safeguards that principle.”
 
The American public has not risen in anger over Padilla’s treatment, because since the original whirligig of media attention when he was arrested, Padilla has faded from the news pages and broadcast screens.  To most Americans, the U.S. simply caught an Al-Qaeda operative ad imprisoned him.  Good riddance, they say.
 
But if the government is allowed to proceed unchecked with this case, it will be fighting against every noble war.  It is a subversive attack on the foundations of liberty to achieve a political end.
 
Fortunately, civil liberties groups have begun the rallying cry.  We join them, and urge the federal courts to put an end to this repulsive attack by our government on our freedoms.