“When they came for the communists, I was silent, because I was not a communist; When they came for the socialists, I was silent, because I was not a socialist; When they came for the trade unionists, I did not protest, because I was not a trade unionist; When they came for the Jews, I did not protest, because I was not a Jew; When they came for me, there was no one left to protest on my behalf.”

–          Pastor Martin Niemoeller (1892-1984)

German Protestant Theologian


There is a fine line between protecting our nation’s security and protecting the civil liberties of our citizens, and the War on Terrorism has raised many questions about just where that line lies.  Some of the questions seem frivolous, while others are truly vexing.  None of the questions raised so far, however, are as troubling as those raised by the case of Jose Padilla.


Let me start by saying that Jose Padilla is probably no saint.  He may even be a really bad guy.  He is, however, an American Citizen.


Nevertheless, on President Bush’s direct orders, federal agents were waiting for him at O’Hare International Airport in Chicago almost three years ago, where they arrested him as he stepped off a flight fromPakistan.  President Bush had declared Padilla to be an “enemy combatant” (the Bush Administration has contended that Padilla was planning to detonate a “dirty bomb” – a conventional explosive that scatters radioactive material), and ordered him to be held at a military prison in South Carolina, where he remains in solitary confinement to this day.  He has been there for almost three years now, in a windowless cell, without access to his family, and with only one tightly-controlled visit from his lawyers (The visit was only granted after the Supreme Court agreed to hear Padilla’s case.  The lawyers, whose conversation with Padilla was videotaped by the government, had to speak with Padilla through a glass wall, in the presence of two government officials, and were not allowed to ask Padilla about how he had been treated – an interesting prohibition, given the recent torture and prison abuse scandals).  He has not had the opportunity to appear before a judge to challenge his detention, nor have any charges been filed against him.  He has had no legal recourse whatsoever; he has been denied every aspect of “due process of law”.


On April 28th, 2004, the U. S. Supreme Court heard the case that had been filed on Padilla’s behalf.  Deputy Solicitor General Paul Clement, representing the Bush Administration, argued before the Court that as Commander-in-Chief of the Armed Forces, the President had the power to do whatever it takes to win the war, including the authority to order an American citizen picked up on American soil and held in isolation indefinitely, with no right to challenge his detention.  Clement also argued that Padilla, who he called a “ticking time bomb”, need not be set free simply because the government did not yet have enough evidence to charge him with a crime.


But this is America.  This is not supposed to happen here.


OK, let’s backtrack a bit.  In days of old, a person could be brought before the King, and the King had the authority to “send him to the dungeons”.  There was no recourse or appeal.  This was one of the reasons we fought the American Revolution – the Declaration of Independence cites “depriving us in many cases, of the benefits of trial by jury” among the complaints against the British crown that justified the War for Independence.  Yet this is exactly the power President Bush claims – essentially, the power to “send him to the dungeons”.


Our founding fathers felt so strongly about due process of law that the 4th, 5th, 6th, 7th, and 8th Amendments to the United States Constitution – fully half of the 10 amendments that make up the Bill of Rights – have to do with the rights of the accused and the judicial process.  In addition, the privilege of the writ of habeas corpus (literally, “produce the body”; this is the right to appear in court to challenge your detention, and is the central issue in the Padilla case), and prohibitions against bills of attainder (laws that apply only to specified individuals) and ex post facto laws (laws that are applied retroactively) are written into the body of the United States Constitution [Article I, Section 9].  Perhaps most significant, the Constitution clearly states – twice – that no person shall be deprived of life, liberty or propertywithout due process of law [5th Amendment (constraining the Federal Government) and 14th Amendment (constraining the States)].


The decision to hold an American citizen in isolation indefinitely, with no recourse, can therefore not be taken lightly.  What makes America special among the nations of the World is that our Constitution is in force – and enforced, constraining even those at the highest levels of government.  Under the Constitution, Padilla’s being a really bad guy doesn’t eliminate his Constitutional rights. If we allow the Constitution to be shredded in Padilla’s case, in what condition can we expect to find the Constitution when we ourselves are in the docket?  In order to preserve the United States Constitution and the rights we all enjoy under its protection, those rights must be guaranteed equally to all citizens – including Jose Padilla – or they will no longer be guaranteed to any of us.


In today’s world, the guarantee of due process of law is one of the fundamental principles that distinguish a free society from a totalitarian state.  If we lose that guarantee, then we will no longer be the nation our founding fathers created – the nation so many have fought and died defending (including those who are fighting now).  In effect, we will have already lost the War on Terrorism, because the terrorists will have succeeded in harming America in the most profound of ways:  they will have taken away the guarantee of due process of law. As Edward R. Murrow once said, “We cannot defend freedom abroad by deserting it at home.” In a very real sense, President Bush would be laying the United States Constitution, draped in the American flag, at the feet of Osama bin Laden.


How serious a threat was Jose Padilla?  We’ll probably never know for sure.  At the June 10th, 2002 press conference, given by Deputy Secretary of Defense Paul Wolfowitz, FBI Director Bob Meuller, and Deputy Attorney General Larry Thompson, and announcing Padilla’s transfer from civilian to military custody and his designation as an “enemy combatant”, Padilla was referred to as a “small fish” who, according to Deputy Secretary Wolfowitz, was acting on instructions to “return to the United States to conduct reconnaissance operations for al Qaeda”.  It was emphasized during the press conference that Padilla and any potential co-conspirators (none of whom have been captured) had not succeeded in acquiring the radioactive materials necessary to build a “dirty bomb”.  The “dirty bomb” plot was in fact referred to, by Director Meuller, as “this possible plan” that “had not gone, as far as we know, much past the discussion stage”.


To be sure, the War on Terrorism is unlike any war we have previously fought, and the President, as Commander-in-Chief, should be given a certain amount of latitude to prosecute the war as he sees fit.  The President also bears the responsibility to do whatever is within his power – within the law – to protect the people of this country from attack to the best of his ability, and the act Padilla is accused of plotting (detonating a “dirty bomb”) would be a horrific attack against America.  It may well be that the evidence the government has against Padilla is, by its nature, classified, and cannot be revealed in a public trial. But the government has stated – to the United States Supreme Court, no less – that they do not yet have enough evidence to charge Padilla with a crime, even though he has been in custody for almost three years.  The Constitution states that no person shall be deprived of his liberty without due process of law.  What has happened to Jose Padilla is a direct affront to this Constitutional protection.  If the government has strong enough evidence to justify the extreme measure of depriving Padilla of his liberty without due process of law, then that same evidence had damn well better be enough to present against him at an appropriate hearing.


On June 1st of this year, the U.S. Department of Justice held a press conference – yes, another press conference – to provide information on Padilla’s alleged activities   At the press conference, Deputy Attorney General James B. Comey detailed Padilla’s recruitment into Al Queda, including the discovery of Padilla’s “application form” to join an Al Queda training camp in Afghanistan (they use a written form???), and his contacts with key Al Queda figures.  Comey described how Padilla planned, with an accomplice, to use existing natural gas connections to simultaneously blow up as many as three high-rise apartment buildings in the United States – all this in addition to the original allegation that Padilla had planned to explode a “dirty bomb” here in the U.S.


Mr. Comey went on to explain that, if Padilla had been treated as a normal suspect through the criminal justice system, they would not have been able to get all of this information out of him – Padilla would have shut up the minute his attorney arrived, and he would have eventually been released.  Then they would have had to follow him, subpoena his banking records, tap his phones (with approval, of course), etc.  Imagine that – actual investigative work.  Maybe in the process they could have ferreted out other terrorists Padilla may have been working with; we’ll never know.  It’s a shame that the JusticeDepartment doesn’t trust the justice system.


Because there is no trial pending for Padilla, the Justice Department will never have to back up the information Comey presented at the press conference with any proof.  While Comey’s remarks resembled an opening statement in a criminal trial, none of what Comey said related to anything that could be introduced as evidence in a court of law – Comey even conceded this point in his remarks.  The allegations were all based on “interviews” with Padilla (conducted in a military detention center without an attorney present – and in light of the torture and prison abuse scandals, raise the notion that those same abhorrent methods are being used on an American citizen right here in America), and on raw, un-analyzed intelligence – with the exception of that “application form”, and even that was probably obtained in what would be ruled an illegal search!


The Bush Administration obviously feels that the potential for the loss of life, which could number in the thousands were Padilla’s alleged plans carried out, justifies completely disregarding Padilla’s Constitutional Rights.  But what about the hundreds of thousands of men and women who have sacrificed their lives defending those same rights?  Don’t they count at least as much as the lives not yet lost? Doesn’t it dishonor their sacrifice to throw away the rights they died defending as soon it becomes inconvenient to honor those rights?


And why did the Justice Department hold a press conference about this?  This is especially puzzling when contrasted with the case of William Krar, a white supremacist you have probably never heard of.  It seems that Krar sent a package containing counterfeit U.N. and Defense Intelligence Agency credentials to an associate in New Jersey, but, to our good fortune, the package was delivered to the wrong address.  The mistaken recipient opened the package, became suspicious, and called the FBI.  When the FBI, acting on their pure blind luck, raided Mr. Krar’s home and storage units in April of 2003 in the small town of Noonday, Texas, they discovered a weapons cache containing fully automatic machine guns, half a million rounds of ammunition, remote-controlled explosives disguised as briefcases, 60 pipe bombs, and enough sodium cyanide and other bomb making materials to make a cyanide bomb capable of killing everyone inside a 30,000 square-foot building.  That’s right: they finally found the materials for a Weapon of Mass Destruction – in Texas.  Add to this potential horror the fact that Krar belonged to a white-supremacist organization that calls itself the “Army of God” – the very same organization to which Oklahoma city bomber Timothy McVeigh belonged!  WHY HAVE WE NOT HEARD ABOUT THIS?  Would we have heard about it if Krar had been a Muslim, rather than a white supremacist?


In contrast to the Padilla case, there was no press conference announcing the discovery of the Noonday weapons cache or the arrest of William Krar.  They didn’t even issue a press release – this from a Justice Department that has issued well over 2,000 press releases (an average of more than two per day) since taking office in January of 2001.  Krar had all the necessary materials to build a fully-functional WMD in Texas, but Padilla had no bomb-making materials and no plausible means of obtaining the radioactive material needed for the “dirty bomb” he was supposedly planning to build.  And yet the Administration held a second press conference to discuss Padilla at a time when the Supreme Court was considering Padilla’s case.  Other than hopelessly tainting any potential jury pool for a future trial (not that a trial is pending), what was accomplished by making these unsubstantiated allegations public?  Could it be that the Bush Administration was attempting to influence the Supreme Court into a favorable decision?  I doubt it – the Court had probably already reached its decision, and the Justices’ opinions were most likely in the final writing stages.


No, I believe the Bush Administration’s purpose in holding the press conference was simple:  pre-emptive damage control.  By putting these allegations out there, the Administration insulated itself from public reaction to the Court’s ruling.  If the Court had ruled that Padilla can continue to be detained indefinitely, the Administration could point to these allegations to stifle the civil libertarians’ inevitable outcry.  If the Court had ruled that Padilla cannot continue to be detained, the Administration could point to these allegations to foment public outrage at Padilla’s release.  Whatever motivation was behind the press conference, the Bush Administration should refrain from attempting to give Padilla a “trial by media”, and instead file criminal charges and give him the trial by jury to which he is entitled.


Until Padilla is convicted in some forum, the presumption of innocence requires us to presume that Padilla is innocent until he is proven guilty in a court of law.  Padilla, however, has been denied access to any court of law (military or civilian); how then is he to argue for his innocence?  The central issue in the Padilla case, the “privilege of the writ of habeas corpus”, can in fact be suspended “when in cases of rebellion or invasion the public safety may require it” (President Lincoln suspended it during the Civil War, for example), but this would have to be done on a nation-wide level (it cannot be suspended only for a specific individual), and President Bush has not done so.  Simply put, doing so would be too politically unpopular during an election year.


On June 28th, the Supreme Court handed down its decisions in the cases of Padilla, Yasser Hamdi (a Saudi American captured on the battlefield of Afghanistan), and the hundreds of detainees being held at the Naval Base at Guantanamo Bay, Cuba – a series of cases widely regarded as the most significant to be heard by the Court in decades.  In a stunning rebuke of the Bush Administration, the Court ruled that, while the President does have the power as Commander-in-Chief to declare a person to be an “enemy combatant”, any person (not just citizens) detained under U.S. control (not just on U.S. soil) has the right to legal counsel and access to the American court system to challenge their detention.  Therefore, the Court ordered hearings for all of the Guantanamo Bay detainees and for Yasser Hamdi.


But not for Jose Padilla.


Relying on a technicality, the Supreme Court threw out Padilla’s lawsuit.  According to the Court, Padilla’s writ of habeas corpus, which had been filed in New York (where Padilla was initially detained) against Donald Rumsfeld (the civilian head of the military), should have been filed in Charleston, South Carolina (where Padilla is currently being held) against the commandant of the brig at Charleston (who, of course, works for Rumsfeld).  Padilla will have to start over by filing a new writ of habeas corpus – which would be subject to the precedents now established in the Hamdi and Guantanamo Bay cases.  In the meantime – and that could be a very long time, indeed – he remains in solitary confinement in his “dungeon”; a windowless cell in the military brig at Charleston, South Carolina.


How can we tolerate our government treating an American citizen in this way?  In America, our citizens have certain rights that are guaranteed by the U. S. Constitution.  Many Americans have fought and died defending those rights. The founding fathers went out of their way to ensure that among those rights was the guarantee of due process of law for all American citizens.  We cannot demand that Jose Padilla give up his Constitutional rights unless we are willing to give up those same rights for ourselves, and I, for one, am not willing to do so.  If an American citizen like Jose Padilla can be arrested here in America and “sent to the dungeons”, then so can you.  Or your spouse.  Or your neighbor.  Or your entire neighborhood.


But this is America.


This is not supposed to happen here.



“Why are we proud?  We are proud because from the beginning of this nation man can walk upright no matter who he is or who she is.  He can walk upright and meet his friend or his enemy, and he does not fear that because that enemy may be a position in great power that he can be suddenly thrown in jail to rot there without charges and with no recourse to justice.  We have the habeas corpus act – and we respect it.” 

– President Dwight D. Eisenhower



UPDATE (2/1/2006): On February 28, 2005, Federal Judge Henry F Floyd, appointed to the bench by President Bush in May of 2003, ruled that the government did not have the authority to hold Jose Padilla as an “enemy combatant”, and gave the Bush Administration 45 days to either release him or charge him with a crime.  The judge vehemently criticized the administration’s use of the “enemy combatant” designation in Padilla’s case, saying, “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner [Padilla] as an enemy combatant.  To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but 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 judge also added that to agree with the Bush Administration would have required him to “engage in judicial activism”.


Emphasizing that the Department of Justice should have filed charges against Padilla in the first place, Judge Floyd said, “[Padilla’s] alleged terrorist plans were thwarted at the time of his arrest.  There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing.”


This decision was a strong rebuke to the Bush Administration, especially coming from a Bush appointee.  The Administration immediately appealed the decision to the 4th Circuit Court of Appeals, which then ruled in the Administration’s favor, ordering Judge Floyd’s ruling “vacated”.  Padilla’s lawyers then appealed to the U.S. Supreme Court.


In a surprise move, Padilla was indicted on 11 counts by a federal grand jury on November 22, 2005.  None of the counts refer to the alleged “dirty bomb” plot, or even the plot to blow up apartment buildings.  Instead, Padilla was indicted for “conspiring to provide material support to terrorists” and “conspiring to murder individuals overseas”.  Padilla was finally released from his military “dungeon” in January of 2006, and transferred to civilian custody in Miami, where he pled “not guilty” to the charges a week later.  His trial is expected to begin in September of 2006.


The Administration has now asked the Supreme Court to refuse to hear Padilla’s still-pending appeal of the 4th Circuit ruling (the one that “vacated” Judge Floyd’s decision), saying that the indictment and upcoming trial already give Padilla what he is asking for (a trial), and that his appeal is therefore moot.  They have even asked the 4th Circuit to vacate its ruling – even though that ruling was decided in the Administration’s favor – because the Supreme Court would then have no decision to review.  The Administration is obviously trying to prevent the Supreme Court from ruling in Padilla’s case.  In fact, the Administration has refused to rescind Padilla’s “enemy combatant” status, raising the concern that, if Padilla were to be acquitted in his civilian trial, he could still be sent back to his “dungeon” as an “enemy combatant”, and his appeal process would, once again, have to start all over.  The Administration is clearly concerned, especially in light of the Court’s rulings in the cases of the Guantanamo Bay detainees and that of Yasser Hamdi, that the court would rule against their ability to arrest an American citizen on American soil and “send him to the dungeons”, and they have no intention whatsoever of giving up that extraordinary power.  This is a blatant manipulation of the judicial process, and cannot be allowed to be rewarded; the Supreme Court should hear the appeal.


The Supreme Court Justices had not yet announced whether they would hear Padilla’s appeal when Samuel Alito was confirmed by the U.S. Senate (to replace retiring Justice Sandra Day O’Connor), and this change in the overall make-up of the court – a clear shift to the right – will very likely have a direct bearing on Padilla’s case.


UPDATE (4/4/2006): Yesterday, the United States Supreme Court announced that it would not hear Jose Padilla’s appeal.  While three Justices on the Court, Associate Justices Ruth Bader Ginsburg, David Souter, and Stephen Breyer, voted to hear the case immediately (it takes the votes of four Justices to get an appeal heard by the Court), three other Justices, Chief Justice John Roberts and Associate Justices Anthony Kennedy and John Paul Stevens, seem to have fallen victim to the Bush Administration’s manipulation of the American Judicial system.  Writing for these three, Justice Kennedy acknowledged the issue of Padilla’s civil rights: “In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.  That concern, however, can be addressed if the necessity arises.”  If the necessity arises.  This is a “shot across the bow” to the Bush Administration; if Padilla is returned to his “dungeon” as an “enemy combatant” following his trial and/or possible incarceration, the Court will deal with it strongly.  These three Justices voted not to hear the case for the time being, however, because the Padilla case “raises fundamental issues respecting the separation of powers”, which “counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.”  (The remaining three Justices, Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, apparently voted not to hear Padilla’s appeal, but did not disclose their reasoning.)  In other words, the Bush Administration’s ploy worked – by indicting Padilla and releasing him from his “dungeon” and into criminal custody to stand trial, the Bush  Administration avoided a Supreme Court decision that would have likely gone against them.


In June of 2005, when the Court ruled that the Government had to either release Yassir Hamdi or charge him with a crime (Hamdi was released and allowed to return to Saudi Arabia), Justice Scalia wrote, “The very core of liberty by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.”  I couldn’t agree more, but this is exactly what has happened to Jose Padilla.  The Court, on the same day it handed down the Hamdi case, dismissed Padilla’s case on a technicality.  In light of the Hamdi decision, had his case been heard this time, Padilla would almost surely have won, and the Bush Administration would have been thwarted in their attempt to establish a Presidential authority to “send him to the dungeons”.


I have two primary concerns: first, that President Bush has not rescinded Padilla’s designation as an “enemy combatant”, and second, that the charges filed against Padilla do not include the “dirty bomb” allegation or even the allegation about blowing up apartment buildings.  Rather, he was indicted for conspiring to provide assistance, such as recruits, money and supplies, to terrorists around the world.  This is no accident – if he had been charged with the “dirty bomb” or apartment building plots – and had then been acquitted – it would become politically impossible for President Bush to return Padilla to his “dungeon”.  As things stand now, if Padilla is convicted, he will go to federal prison; if he is acquitted, he can still be returned to his “dungeon”, based on his continuing status as an “enemy combatant” and the still-outstanding “dirty bomb” and apartment building allegations.


The Court made it clear that, for now,  they will be watching this case closely to make absolutely sure that Padilla receives all the rights and protections, as Justice Kennedy wrote, that are “guaranteed to all federal criminal defendants”.  Note the wording – Justice Kennedy was very careful not to address whether these rights and protections are also guaranteed to an American citizen being held in military custody as an “enemy combatant”, and who is therefore not a “federal criminal defendant.”


If Padilla is convicted in his upcoming trial (expected to begin in September), he will be sent to federal prison for a very long time – which is entirely appropriate.  What is not at all appropriate is the fact that what happened to Jose Padilla for three and a half years will have never been fully addressed by the Courts, and, at least for now, the Administration in power continues to believe that the President has the power to send American citizens, arrested on American soil, “to the dungeons”.


This needed to be resolved once and for all – the Court should have heard the appeal now.


Stay tuned…


UPDATE (2/23/2007): The trial of Jose Padilla is scheduled to begin April 16th, 2007, but he may not be competent to stand trial.  A competency hearing is taking place this week, and so far two psychological experts have testified that Padilla suffers from post-traumatic stress disorder and extreme anxiety, which both attributed to his extended isolation and treatment.  One of the experts, Patricia Zapf, a clinical forensic psychologist and associate professor at City University in New York, testified that Padilla displayed “strong indication of cognitive impairment” and a 98% probability of brain injury.


Brain injury?


According to the defense, Padilla was subjected to extreme temperatures, fed LSD and other drugs, and made to endure long hours of interrogation shackled in “stress positions”, all while detained at the military brig in South Carolina.


A United States citizen, arrested in America, imprisoned in America without charge for over three years, being tortured by Americans?


But this is America.  This is definitely not supposed to happen here.


Meanwhile, the Bush Administration has continued to argue that it has the right to hold Americans without charge indefinitely.  In the case of Omar v. Harvey (United States Court of Appeals – D.C. Circuit, docket #06-5126, February 2007)), the Bush Administration argued that, when “foreign entanglements are involved”, the government has the power to hold an American citizen indefinitely, without charge or access to counsel.  The D.C. Court of Appeals disagreed, and the case will almost certainly end up before the Supreme Court, where Justice Anthony Kennedy will likely provide the deciding vote.


UPDATE (3/7/2007): Padilla was ruled competent to stand trial; his trial is expected to begin on April 16th, 2007.  [UPDATE (4/17/2007): Padilla’s trial has begun.]


UPDATE (8/18/07): Jose Padilla was convicted, along with his co-defendants, of conspiring to support terrorism.  Barring a successful appeal, it is likely that Padilla will spend the rest of his life in federal prison, which, now that Padilla has been duly convicted of such a serious crime, is as it should be.  What concerns me is that the Bush Administration has managed to successfully manipulate the federal courts and the American system of Justice so that the issue of whether the government has the authority to detain a United States citizen, captured here in America, for several years without any charges being filed against him – in other words, to “send him to the dungeons” – has been left unresolved.  The Bush Administration has made no effort to conceal their intention to do everything in its power to keep this “authority” in place.


But this is America.


This is not supposed to happen here.




For more information on the Padilla case, click here.


© 2004 by David Bleidistel.  All rights reserved.