For my radio show on August 6th I interviewed
Jacob Hornberger, the founder and president of the Future
of Freedom Foundation. [stream]
The man was upset. Why? Because, he says, the Bush regime, which has already
acted contrary to every
one of the first ten amendments, is now poised to destroy the Bill
of Rights forever. All that remains between us and the final destruction
is for the Supreme Court to approve the actions of the Department of Defense
in the case of Padilla
Padilla, you'll recall,
is the American citizen accused of being a conspirator in a plot to detonate
bomb in the US. When U.S. district judge of the Southern District of New
York, Michael B. Mukasey, told the government to produce the defendant, the
White House team decided instead to turn him over to the US Navy, which they
did, on June 9th, 2002.
As Lewis Z. Koch described
the scene in the Bulletin of Atomic Scientists:
"Mukasey reasoned in 2002 that Padilla, charged with being a terrorist and
dirty-bomber for al-Qaeda, certainly deserved an attorney, maybe even a gaggle
of them. So Mukasey appointed Donna Newman to represent Padilla. Newman met
with Padilla on at least two occasions, then asked the judge to vacate the warrant
for Padilla because he had not been charged with a crime. (Newman was quickly
joined by some legal heavy hitters from the American Civil Liberties Union,
the New York Civil Liberties Union, the Center for National Security Studies,
the New York State Association of Criminal Defense Lawyers, and the National
Association of Criminal Defense Lawyers.)
The government insisted on an ex parte (private) meeting with Mukasey. The
Justice attorneys told the judge something to the effect of, 'Oops, sorry about
that, Judge, but the witness subpoena for Padilla is being withdrawn.' Mukasey
promptly signed papers vacating the warrant. Then the Justice attorneys announced
that President Bush had designated Padilla an 'enemy combatant,' and before
you could say Mr. Mxyztplk, Padilla was whisked off to the Consolidated Naval
Brig, 769 miles away from his attorney."
The Navy has held Padilla in that South Carolina brig without access to his
lawyer ever since.
Why would the government go to such lengths to persecute Jose Padilla in the
first place? Perhaps it's because when Ashcroft announced his detainment as
an "enemy combatant," – fittingly from
Moscow – Padilla was described as a terrible al-Qaeda terrorist threat –
a man capable of, and intent on, detonating a "dirty bomb" which would cause
"cause mass death and injury." The
truth is, Padilla had no money, no experience with bombs, and no access
to radioactive material. In short, it was decided that because the criminal
case against Padilla was paper
thin, his fate could not be left to some irresponsible federal judge or
jury to decide, and so they turned him over to the military. If George Bush
has his way, the military will have successfully claimed the legal right to
do this to you too.
No phone call. No lawyer. You are a terrorist, as
"determined" by the president in a "finding." A secret military tribunal
will decide your fate. With the consent of two-thirds of a jury of handpicked
officers, they will do with you as they like.
Even though Jose Padilla is a US citizen from Chicago, that shouldn't even
matter. The Bill of Rights doesn't once mention the word "citizen." It says
"people," "owner," "persons," "the accused." Two constitutional amendments clearly
in question in this case are the 5th and 6th:
"Amendment V: No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury, except
in cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defense."
According to the Federal three judge Appeals Court Panel panel in Washington
DC, the Bill of Rights doesn't mean what it says. They seem to have found a
part of the constitution's commander-in-chief-clause, the first part of Article
2, Section 2, Clause 1, which gives the president the right to label people
"enemy combatants" and turn them over to military tribunals. Let's see here:
"The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States; he may require the Opinion, in writing, of the
principal Officer in each of the executive Departments, upon any Subject relating
to the Duties of their respective Offices, and he shall have Power to Grant
Reprieves and Pardons for Offences against the United States, except in Cases
of Impeachment. "
Huh. I don't see the part about Star-Chamber
courts with boundless execution power. Oh, well, it's a "living
(Funny thing about the US Court of Appeals panel which overturned the decision
of the lower
that had ruled against Bush's tribunals: John Roberts, Bush's Supreme Court
nominee, opined with the unanimous court the
day after interviewing with Bush for his chance at the big promotion.)
If he's lucky, Bush will have that rat confirmed for the highest court just
in time to hear the Padilla case – a case which the court previously ducked,
saying that they should have sued the local brig warden instead of Rumsfeld.
By the way, "enemy
combatant" is a distinction of accused criminals that exists only in the
sick minds of the current administration, and has no basis in law whatsoever.
When the US Congress tried
to add the most
basic rules for the treatment of these prisoners to a recent "defense" spending
bill, Bush, who has never vetoed anything, threatened to veto it. The White
House apparently thought that they could intimidate the Congress by making them
look bad for not "supporting the troops." This plan backfired. So to avoid the
embarrassment of the president by those from his own party, the bill was withdrawn
by the leadership rather than voted on.
Association of Criminal Defense Lawyers has long
ago announced their intent to boycott the tribunals, and now even the
prosecutors are resigning in protest over the "rigging" of the process.
One military prosecutor, Capt. John Carr, said
in an angry email to his superiors:
"When I volunteered to assist with this process and was assigned to this
office, I expected there would at least be a minimal effort to establish a fair
process and diligently prepare cases against significant accused.
"Instead, I find a half-hearted and disorganized effort by a skeleton group
of relatively inexperienced attorneys to prosecute fairly low-level accused
in a process that appears to be rigged.
"You have repeatedly said to the office that the military panel will be
handpicked and will not acquit these detainees and that we only needed to worry
about building a record for the review panel."
All this, even as they prepare to release
more detainees from Guantánamo Bay. Does that mean that all along they've
been innocent sheepherders kidnapped
by the Afghan Northern Alliance and then sold to the Republicans for the
taxpayer's cash? Or is there a nice Karen
program going on down there that turns out white, middle age, middle class,
Protestant types who favor
mercantilism and war?
No politician who replaces Bush would relinquish this power once claimed. Bush/Cheney
have three and a half more years, the Republicans in Congress, having taken
advantage of their ability to redraw important congressional districts all
over America, probably have at least as long, and they are completely unwilling
or unable to stop the executive branch. Another bad court decision and another
attack, and it could start looking like Woodrow
Wilson's purges around here pretty fast. As far as the state protecting
us from itself, the Supreme Court is all we have left.
Cross your fingers, and let the Amicus