The Constitution must apply to all if it is to have meaning
It's been two years and eight months since Jose Padilla, an American citizen, was arrested at O'Hare Airport in Chicago and taken into custody.
Let us stipulate that Padilla is no choir boy by anyone's account. He grew up on the mean streets of New York and Chicago and was a member of a Chicago street gang. He was arrested and did time on various charges, including the juvenile court equivalent of assault and robbery.
While living in Florida, he converted to Islam and took the name Abdullah al Muhajir. He abandoned a wife and child and moved to Cairo, later was in Pakistan and may have had Al-Qaida connections.
When his arrest was announced in June 2002, a month after the fact, it was by no less a spokesman than Attorney General John Ashcroft, who told reporters, "I am pleased to announce today a significant step forward in the War on Terrorism. We have captured a known terrorist who was exploring a plan to build and explode a radiological device, or 'dirty bomb' in the United States."
Padilla was characterized as a "bad guy" by no less than President Bush, who told reporters a few days later, "He's where he needs to be, detained."
Then and now
So he was detained then, in the spring of 2002, and so he remains detained today, in the winter of 2005. And, yet, he has not been charged with a thing.
Padilla, or al Mahajir, a citizen of the United States, has never had the opportunity to face his accuser. He has been declared an "enemy combatant" by President Bush, and that, the administration maintains, trumps Padilla's constitutional rights. There are no charges for him to refute, and so he cannot. Indeed, the government argues that since he has not been charged, he is not entitled to a lawyer. He is not only deemed guilty until proved innocent, there is no mechanism for him to assert his innocence.
The contention that a man can be deprived of his liberty indefinitely on the strength of a presidential declaration is so broad that it inspired liberal and conservative civil libertarians to help argue Padilla's case. The Cato Institute, the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute have filed friend of the court briefs demanding that he be given an opportunity to defend himself.
One 'combatant' got away
Padilla's case is not unlike that of Yaser Esam Hamdi, a young American-born Saudi declared an "enemy combatant" after being captured in Afghanistan. After the Supreme Court ruled that Hamdi had a right to be charged, the administration responded by shipping this presumed threat to national security back to his family in Saudi Arabia.
The 2nd U.S. Circuit Court of Appeals in New York also ordered the administration to either charge Padilla with a crime or let him go, but the administration argued successfully to the Supreme Court that jurisdiction in the case rested not in New York, where the initial warrant for Padilla's arrest as a material witness was issued, but in South Carolina, where he was being held.
This week Padilla's attorneys petitioned U.S. District Judge Henry Floyd to hear their plea for a writ of habeas corpus. The government has had more than two years to assemble a case against Padilla. If they can, they should charge him. If they can't, they should let him go.
That's what the Supreme Court said in the Hamdi case, and there is no reason to believe it will say any differently in the Padilla case, once it gets there. But it is immoral for a government to continue to hold someone in clear violation of the Constitution for years, making his lawyers jump through hoops. And if government officials are doing so only to save face, because the president and attorney general overstated the case during press conferences years ago, that's not only immoral, it's criminal.