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The Ominous Message in Padilla


Yesterday the presiding judge in the Jose Padilla case sentenced Padilla to 17 years in jail. Supporters of the “war on terrorism” might be tempted to smugly believe that the conviction and sentence vindicated what the government did to Padilla. They do not. What happened to Padilla continues to hang over the head of every independent-minded American like a Damocles sword.

The reason that our American ancestors added the Bill of Rights to the Constitution was twofold: (1) they didn’t trust federal officials when it came to their liberties, and (2) they understood that the greatest threat to their freedom lay with federal officials. Thus, while they believed that a federal government was necessary, they also understood the importance of enumerating express restrictions on federal power.

One of the legitimate purposes of government is to punish people who inflict violence on others. But our American ancestors understood that government could not be trusted with arbitrarily making the determination as to who was guilty and who wasn’t. Drawing on centuries of jurisprudence, stretching all the way back into English history, they understood the importance of judicial process in determining the guilt or innocence of a person whom the feds were accusing of a crime.

That’s where the procedural protections enumerated in the Bill of Rights come in, protections that stretch all the way back to the Magna Carta in 1215. The point was essentially this: Before the government will be permitted to punish a person for a crime, federal officials would have to follow a certain judicial process, one in which vital rights were guaranteed to the accused. Among these rights were the right to have a grand jury decide whether to indict you, the right to have a lawyer defend you, the right to confront the witnesses against you, the right to summon witnesses on your behalf, the right to remain silent, the right to a speedy trial, the right to due process of law, the right to be free of cruel and unusual punishments, and the right to a trial by jury.

The reason that the Padilla case is so ominous for the American people is that it established that the government now wields the post-9/11 power to ignore and violate all of those constitutional protections, as long as it is the Pentagon that is doing the ignoring and the violating.

In other words, the Padilla case did not wipe out these constitutional protections as far as the police are concerned. But it does stand for the proposition that all of these constitutional protections are wiped out insofar as the military is concerned. And this despite the fact that the Bill of Rights expressly applies to the entire federal government, not just the non-military parts of the federal government.

During the three years that the Pentagon held Padilla, he was never indicted by a grand jury. For much of that time, he was denied right to counsel. He had no due process rights. He was subjected to cruel and unusual punishments with sensory deprivation and sleep deprivation. He had no right to remain silent. He had no right to a jury trial.

The Pentagon’s denial of all these rights had absolutely no adverse effect on his ultimate criminal prosecution in federal court. The judge effectively held that despite all the things that the Pentagon had done to Padilla during those 3 years, including denying him a speedy trial, would not interfere with his subsequent prosecution and incarceration as a criminal defendant.

Moreover, don’t forget that the reason that Padilla ended up in federal court as a criminal defendant was entirely due to the discretion of the government. That is, the Pentagon’s position was — and continues to be — that if military officials had wanted to keep Padilla in military custody for the rest of his life, they had the power to do so.

Why is the Padilla case so important? Because it has established the extent of the post-9/11 power that the president and the Pentagon now wield over not just Padilla but over all Americans. Despite the express wording of the Bill of Rights, the president and the Pentagon, working together, now wield the omnipotent, dictatorial power to seize any and all Americans, railroad them into isolated detention camps, deny them access to attorneys and family, grand-jury review, due process of law, speedy trial, and trial by jury, and subject them to cruel and unusual punishments, including torture.

What is needed for the exercise of such power over any and all Americans? Just one simple thing: the labeling of the accused as an “enemy combatant” in the “war on terrorism.” Once a victim becomes the target of the “enemy combatant” label, he is a goner, until such point that the government decides, out of pure discretion, to move him into federal court as a criminal defendant, assuming it ever decides to do so.

How was this post-9/11 omnipotent, dictatorial power acquired? Was the Constitution amended after 9/11? Nope. It was simply announced by the president and the Pentagon. That’s how they effectively “amended” the Constitution to nullify the Bill of Rights.

So far, the Padilla doctrine has been applied to two Americans (and, of course, many foreigners.) But if America suffers another major terrorist “emergency,” which is entirely possible given the continued U.S. killing of Iraqis, Americans might yet get to see the full impact of the Padilla doctrine. It won’t be pretty. Just imagine dozens of Gitmos across the land housing hundreds or thousands of Americans where no one, not even the press, will be permitted access for many years.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.