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The Honolulu Advertiser
Posted on: Friday, April 7, 2006

COMMENTARY
U.S. embarrassed itself in Jose Padilla case

By Eric Mink

A divided Supreme Court on Monday rejected an appeal from Jose Padilla, held as an enemy combatant without traditional legal rights for more than three years, sidestepping a challenge to Bush administration wartime detention powers.

Associated Press library photo

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President Bush is playing games with the Constitution, and a majority of the justices on the Supreme Court don't realize it, don't care or don't take the situation seriously.

On Monday, the court refused to accept an appeal filed by Jose Padilla, an American citizen from Chicago who the government claims is a terrorist. Padilla's complaint, essentially, is that for the last four years, the United States government has defied the Constitution, disregarded the rule of law and acted pretty much like a tinhorn Third World dictatorship.

The court, by a vote of 6 to 3, declined to hear his case, noting again, in essence that the Bush administration finally had begun to handle Padilla's case in accordance with the law. Therefore, there no longer was any reason to review the government's previous four years of bad behavior.

The court's message to Bush and, by extension, to the rest of the country: The government is free to abuse its power so long as it stops before the court is presented with a legal challenge to its conduct.

In Padilla's case, that conduct has been shameful.

Government agents grabbed Padilla at O'Hare Airport in May 2002, and threw him in jail as a "material witness" in a criminal case. At a press conference a month later, John Ashcroft, then the U.S. attorney general, claimed that Padilla had been plotting to explode here in America a conventional bomb contaminated with radioactive material, a so-called dirty bomb.

Bush had declared Padilla an American citizen arrested on American soil an "enemy combatant," Ashcroft said, and had him shipped to a military prison in South Carolina. No charges were filed against Padilla.

Lawyers working on Padilla's behalf eventually filed court challenges to his classification as an enemy combatant and to his military confinement, although it was nearly two years before he was allowed to meet or speak with the people representing him.

Last September, a federal appeals court accepted the government's argument that Padilla was so dangerous that he had to remain in military custody. Still, no charges were filed against him. Padilla's lawyers appealed to the U.S. Supreme Court.

And in November facing imminent Supreme Court filing deadlines the government pulled a 180. Completely contradicting the arguments it had made to the appeals court, the Justice Department suddenly moved Padilla into civilian custody and filed some vague criminal charges against him involving a conspiracy to do violence overseas.

There was no mention of a dirty bomb, no mention of acts of terrorism against America. But five months later, Padilla's transfer into the civilian criminal court system let the Supreme Court duck the grave issues underlying his case.

Here, then, is the meaning of Monday's Supreme Court action:

The president of the United States can have you, an American citizen, snatched off the street. He can declare you to be an enemy combatant and have you thrown into a military prison. He can publicly denounce you as a criminal but not charge you with any crime. He can deny you access to a lawyer and keep you locked up without ever presenting evidence against you to a judge or jury. And he can keep you imprisoned for as long as he wants unless and until a legal appeal manages to wend its way through the multiple layers of the judicial system to the doorstep of the Supreme Court.

Bush can do these things because America is at war, because he is the president, because the Constitution makes the president the commander in chief of the armed forces and because the power of the commander in chief to conduct war is unlimited. Says he.

Two years ago, two decisions by the Supreme Court seemed to limit the president's power. In one case, the court ruled that even non-citizens in U.S. military custody could go to federal court and challenge Bush's declaration that they were enemy combatants. In a second case, the court ruled that American civilians held in U.S. military prisons still retain the right to due process of law.

In an oft-quoted declaration of principle, Justice Sandra Day O'Connor's opinion in the second case emphasized that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

But over the last two years, Bush and his loyal shock corps of lawyers have all but ignored those rulings. Indeed, in court filing after court filing, they've made many of the same arguments that the Supreme Court rejected in 2004. And at the prison at Guantanamo Bay, the sham hearings set up for enemy combatants effectively guarantee that those classifications will stand for the duration of the war on terrorism.

Bush has never outlined the terms and conditions that, if met, would signify the end of that war. In the absence of a clear and coherent measure of victory, war becomes perpetual. With perpetual war comes perpetual justification for the unlimited power of the president and the executive branch unless the legislative and judicial branches constitutionally equal in power and authority to the president stop him.

More than five years into the Bush presidency, the administration has bullied, bluffed and buried Congress in all matters involving national security.

That leaves the Supreme Court as the only institution standing between the American people and an out-of-control executive branch or, more accurately, an executive branch in total control.

In June 2004, Justice John Paul Stevens disagreed with the court majority's decision to send Padilla's case back to a lower court on a technicality. "For if this nation is to remain true to the ideals symbolized by its flag," he wrote, "it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

On Monday, Stevens voted with the majority and refused to allow Padilla a hearing before the Supreme Court.

Eric Mink is commentary editor for the St. Louis Post-Dispatch. Reach him at emink@post-dispatch.com.