Tags: Excessive | Government | Power | Jose | Padilla | Case

Excessive Government Power in Jose Padilla Case

Wednesday, 28 December 2005 12:00 AM

The lawyers are now dancing on the heads of their partisanly pointed pins as to whether a president has inherent authority for warrantless searches in times of war.

One side invokes both the Fourth Amendment and the Foreign Intelligence Surveillance Act, noting that there was a procedure in place – which the president didn't use – to secure warrants for eavesdropping. The other side points out that past presidents of the opposing parties have done it, proving that it must be right, or at least that their opponents are hypocrites for saying otherwise now.

Besides, it's al-Qaida.

There was no such dancing in the opinion of the Fourth Circuit last week in the case of Jose Padilla, the man whose detention gave rise to one of the broadest holdings to date for executive power – and one of the harshest scoldings of the federal government I've ever read in an appellate opinion.

The trouble with Jose Padilla is the trouble with many arguments that are based on the "after all, it's al-Qaida" theme.

It turns out that maybe Jose Padilla wasn't such an evil, evil guy after all. It turns out that maybe Jose Padilla was a minor character in the federal conspiracy indictment, when he was finally charged with a crime after being held in military detention for three and a half years as the dirty bomber, as the poster boy for al-Qaida.

President Bush used the occasion of the detention of Jose Padilla to invoke broad authority based on his executive power to detain United States citizens without charges indefinitely as enemy combatants when they take up arms with the enemy. Jose Padilla had been whisked from a civilian jail to a military brig based on information supposedly linking him to al-Qaida and to a dirty-bomb plot. He was repeatedly portrayed as a key player in that plot, not the courier he turned out to be in the federal indictment that was returned so much later.

Before that, the case reached the Fourth Circuit, where the court, in an opinion by Judge Michael Luttig – the brilliant but acerbic conservative often mentioned for the Supreme Court – wrote an important opinion upholding the broadest construction of presidential power. It's one of those opinions written with the understanding that its reasoning would be subject to Supreme Court review.

That is when the prosecutors did the unthinkable. After three and a half years, they indicted Padilla on mundane federal charges and requested that the appellate court order his transfer to civilian authority – and withdraw its opinion, suggesting, even in the eyes of the court itself, that the whole thing might have been some kind of game.

The court, last week, exploded with anger at what it saw as the pure arrogance of the government, using people – the defendant, the judges, the system – without respect. It refused the request to transfer the defendant, which punishes the wrong person, and refused to withdraw its opinion, which suffers from the same flaw. But the tongue-lashing from Judge Luttig is a rare treat for anyone who has ever wished for a prosecutor to get theirs. These do.

More importantly, it highlights the other problem with the arguments we tend to make against civil liberties when we're afraid. There's partisan politics, of course – we're always happier with a powerful president when our partisan is in office. But there's also the pattern of being wrong, most of the time. Our enemies are real, no question. But fighting them by trampling civil liberties tends to be counterproductive, if the experience of trying to seize steelyards, imprisoning loyal citizens of Japanese descent, and banning the poetry of Emma Goldman teaches us any lessons at all.

COPYRIGHT 2005 CREATORS SYNDICATE INC.

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The lawyers are now dancing on the heads of their partisanly pointed pins as to whether a president has inherent authority for warrantless searches in times of war. One side invokes both the Fourth Amendment and the Foreign Intelligence Surveillance Act, noting that...
Excessive,Government,Power,Jose,Padilla,Case
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2005-00-28
Wednesday, 28 December 2005 12:00 AM
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