Who's Next?

[This essay, on the beginnings of the Jose Padilla case, originally appeared in the Hartford Courant on June 20, 2002. Over the next several days I will be republishing some op-eds and pieces I wrote in the first year after 9/11 on civil liberties issues.

It is worth remembering the extreme claims of power that led to Padilla's original imprisonment. Before the Hamdi decision, the Bush Administration took the view that it could seize anyone, anywhere-- including U.S. citizens-- that it claimed was associated with terrorism and hold that person indefinitely without any rights. Furthermore, it claimed that the President's designation that a person was an enemy of the state was unreviewable by the courts, or at the very least should be upheld if there was *any* evidence supporting it, including, for example, a self-serving affidavit from an executive branch official.

Five years later, Padilla is still in prison without ever having been convicted of any crime, and, if reports are to believed, has become unhinged from the treatment he received at the hands of his own government.

It has often been said that it can't happen here. But it already has happened. And it is still happening.

Five years after 9/11, we should remember the road we have traveled.]

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by Jack M. Balkin


NEW HAVEN -- Jose Padilla, an American citizen, is now being held in a military prison in South Carolina. He can't speak to counsel. He has no rights that the Bush administration wishes to respect. Padilla's case is further evidence that there is something deeply troubling about this government's attitude toward the Constitution and the rule of law.

For months, critics have worried about the administration's proposal to employ military tribunals. But the greater danger to civil liberties has always been lurking alongside. It is not secret trial but indefinite detention: the danger that the attorney general or some other government functionary will pick some face out of the crowd and hold that person indefinitely without legal remedy.

The administration justifies its action on the ground that Padilla, who has converted to Islam and now calls himself Abdullah al Muhajir, is an unlawful combatant: someone who is secretly fighting against our country without wearing a uniform or announcing his belligerent status. If news reports are to be believed, Padilla is no choirboy. But in our system of justice, even violent criminals are accorded basic rights against the federal government: the right to have accusations against them placed before a grand jury, the right to the advice and assistance of counsel, the right to a speedy and public trial by a jury of their peers and, above all, the right to judicial review of the legality of their arrest, detention and trial. By accusing Jose Padilla of conspiring with the al Qaeda terrorist network, the administration has attempted to short-circuit all of these guarantees.

There is no doubt that identified enemy soldiers may be arrested and detained by the military, although even then they are subject to the protections afforded by international law to prisoners of war. The question to be decided, however, is whether Jose Padilla is an enemy soldier. One should not be able to strip away his constitutional rights merely by throwing him in the brig. If the attorney general can simply announce that a citizen is an enemy of the state and use that accusation to hold him indefinitely, our Constitution is not worth the paper it is written on.

Repeatedly, this administration has taken whatever steps it can to avoid accountability, either to Congress or to the courts. It justifies its actions not by giving us freedom from fear but by spreading fear. It raises the specter of grave dangers to our national security, from which it will save us if only we submit ourselves willingly to its greater wisdom.

We have a right to be worried about future attacks. But we also have the right to be worried about the slow and steady evisceration of legal procedures designed to prevent governments from arbitrary detention and arrest.

At first, one could argue that the Bush administration was interested only in seeking rough justice overseas. Then one could comfort oneself with the notion that only aliens overstaying their visas would be targeted. But now it appears that even American citizens may be rounded up on suspicion and placed in military prisons indefinitely at the pleasure of the president.

There is only one word to describe this, and it is not democracy. It is authoritarianism.