In June 2002, Secretary of Defense Donald Rumsfeld, in a revealing admission of the Bush administration’s approach, said that Jose Padilla would “be submitted to a military court, or something like that — our interest in the case really isn’t law enforcement.”

Since that time, Padilla, a U.S. citizen arrested May 8, 2002, in Chicago, has been held incommunicado by the military on a naval brig in South Carolina. The government has not charged Padilla with a crime and has denied him access to counsel, his family and any nonmilitary personnel.

All the while, Attorney General John Ashcroft and others have maintained that their actions were fully consistent with statutory and constitutional law. Fortunately, in last week’s decision in Padilla v. Rumsfeld, 2003, the 2nd U.S. Circuit Court of Appeals put the brakes on the Bush administration’s end run around the law.

The Padilla decision was more than just a political victory for civil libertarians; it was a firm rejection of the Bush administration’s cavalier approach to fundamental substantive and procedural legal protections.

The 2nd Circuit’s decision, which requires Padilla to be released from military custody within 30 days, placed considerable emphasis on the Non-Detention Act of 1971. In so doing, the court provided a historical context for its ruling that demands closer examination.

While al-Qaida and other terrorist groups are a great menace, it is not the first time that the United States has faced internal threats — real or perceived. In 1971, Congress passed the Non-Detention Act, which prohibits the detention of any U.S. citizen without specific congressional authorization, in response to the federal government’s World War II-era internment of Japanese-Americans.

A generation before that, during the raids conducted by Attorney General A. Mitchell Palmer in 1919 and 1920, the federal government rounded up as many as 10,000 immigrants in response to a rash of mail bombings. Many were denied counsel, held with excessive bail or deported. None was charged with any involvement in the terrorist bombings.
More recently, in the 1960s and 1970s, the FBI targeted suspected communists and other political undesirables in its infamous Operation Cointelpro until the Watergate scandal brought about meaningful reform.

In each instance of governmental over-reaching, the nation eventually came to the correct conclusion that internal threats, whether genuine or contrived, did not permit the executive branch to dispense with fundamental legal principles.

The current terrorist threat, although it is very real, cannot be an exception. In coming to that conclusion, the 2nd Circuit did not fail to take terrorism seriously. Rather, the court demonstrated its conviction that the U.S. legal system is robust enough to respond to evolving societal conditions.

Of course, no one seriously could dispute that prisoners are entitled to a more-limited set of due-process protections during combat. A prisoner of war, for example, does not have a constitutional right to counsel. Conversely, an accused in the criminal context does have a right to counsel and a host of procedural and substantive protections.
When wars were fought with muskets on designated battlefields, the division between these two spheres was clear. Today, the distinction is increasingly blurred. In the middle of this confusion, the Bush administration takes the extreme position that the president should have total discretion to determine whether an individual should be afforded the protections of the criminal-justice system.

Under this theory, rights are not self-evident but instead granted by the grace of the chief executive.

The range of amicus briefs filed on behalf of Padilla underscores that the case places core legal rights at stake. Along with those that one might expect — the ACLU and the Lawyers Committee for Human Rights — also filing briefs in support of Padilla’s position were the National Association of Criminal Defense Lawyers, the Association of the Bar of the City of New York and Public Defender Service for the District of Columbia.

The criminal-defense bar was motivated not by political ideology but by a deep concern over the impact that the administration’s radical position, if affirmed, might have on the very foundations of due process and the presumption of innocence until proved guilty.

Two former members of the Bush administration, each of whom had a key role in crafting the administration’s legal response to terrorism, also have questioned the government’s tactics. Viet Dinh, who until May headed the Justice Department’s Office of Legal Policy and was an author of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, called the administration’s ad hoc approach to Padilla and other so-called enemy combatants “unsustainable.”

Michael Chertoff, who headed the criminal division of the Justice Department and is a judge on the 3rd Circuit, said that it was time to move beyond a case-by-case approach. Chertoff called for “a long term and sustainable architecture for a process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available.”

Despite these growing, bipartisan criticisms and the force of the 2nd Circuit’s decision, the Bush administration is unbowed. The White House has announced that it will seek an immediate stay of the decision in order to keep Padilla in military custody. The administration’s prospects on appeal, however, seem dim. Dinh has said publicly that, if the administration’s improvised policy for “enemy combatants” came before the U.S. Supreme Court, the justices would have “nothing to defer to.”

Rather than fighting the ruling, the administration should use the decision as an opportunity to reassess its legal approach to combating terrorism. We need fair, humane and articulate standards that govern the treatment, not just of Padilla and other citizens but also of the hundreds of noncitizens detained as “enemy combatants” in Guantánamo Bay, Cuba.

Such procedures should be consistent with constitutional and statutory law and recognize the vital role of the independent judiciary in the process. After all, the purpose of rolling back the terrorist threat is to preserve our freedoms. If, in the process, we undermine the legal principles that are the source our freedoms, then what, exactly, are we fighting for?

Judd Legum is the deputy research director at the Center for American Progress and a member of the Maryland Bar.

This column first appeared in the Daily Journal.

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Judd Legum

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