It is rare that we get anything even resembling good news on the ongoing effects on American liberties of the undeclared and amorphous but still useful (to some) war on terror. And in fact this is not unalloyed good news. Still, it’s worth noting and issuing a modest cheer or two.
Last week U.S. District Court Judge Michael B. Mukasey issued a decision in the Jose Padilla case that put at least a small dent in administration efforts to eliminate any semblance of accountability or checks and balances when it comes to handling people accused of terrorist links or sympathies. It could prove to be only a little speed bump in the ongoing effort to put in place, as the Washington Post put it, "a parallel legal system in which terrorism suspects … may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system."
But a speed bump is better than a checkered flag in this instance.
MAJOR THREAT OR MINOR PLAYER?
You probably remember Jose Padilla, the alleged former Chicago gang member also known as Abdullah al-Mujahir, who was arrested last May as he was arriving on a plane at Chicago’s O’Hare airport. He had apparently actually had contact with al-Qaida people overseas, and he was accused of planning to detonate a "dirty" nuclear bomb – not much explosion but a lot of radioactive fallout and supposedly easier to put together than a conventional nuclear weapon (do those words go together?).
Subsequent news stories have suggested strongly that Padilla-al-Mujahir, rather than being a major player in an imminent plot, was something of a pawn in a plan that had barely begun to germinate. Apparently he had returned to the United States to begin scouting out possible targets for a dirty bomb, and had little or no idea how to put one together or detonate it. So while most of the media and probably most Americans seemed less than upset that he had been detained, the government almost certainly exaggerated the threat that he represented.
The trouble is, nobody can be sure of much of anything, either about Mr. Padilla or the case against him. President Bush simply declared him an "unlawful combatant" and the authorities whisked him away to a military prison. He may or may not be undergoing intensive questioning there so the gummint can figure out how serious the plot was and who some of the other participants might be. But he has been held incommunicado and little or no information has been released about him. No charges have been filed. He is not allowed to see or communicate with attorneys or family members.
INCHING TOWARD THE RULE OF LAW
Judge Mukasey ruled that this was taking things a little far, even in a time of legitimate concern about and an undeclared "war" on terrorism. He ruled that Padilla has the right to contest his designation, and to consult with an attorney to begin some sort of judicial proceeding in which the courts will decide whether the designation as "unlawful combatant" is justified by the evidence or not.
That’s an important step in the direction of something like a restoration of the concept that the rule of law is applicable and important even during a time of crisis. The administration had asserted that simply by having the designation applied to him – officially by the president, presumably acting with some sort of advice but in effect unilaterally – the government had the right to detain him indefinitely with no recourse, no possibility of appeal, no right to see a lawyer, and no right even to know whether charges would ever be preferred against him.
That’s a simply breathtaking assertion, but it seems to have bothered only the occasional isolated civil libertarian here and there. It’s the kind of power asserted by police states and totalitarian governments over real and imagined political dissidents. But it’s the kind of power that ought to be anathema in a free society.
Fascinating. The more the administration takes away the rights and liberties of American citizens – Padilla is a citizen, by the way, not a foreign national – the more President Bush insists that this is really a war to protect our liberties, and anybody who questions it must be an enemy of liberty.
AN UNFORTUNATE PROVISO
Even as he was ruling that Padilla was not entirely rights-free, however, Judge Mukasey signaled that it is still going to be difficult for him to get much in the way of justice even if the doors to the courtrooms are opened. He also ruled that the president does, indeed, have "the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil."
Thus the judge made sure to send the message that he and other jurists are inclined to be extremely deferential to the president and to the assertion of power by the executive branch during a time of perceived crisis. So even as the courts waffled on habeas corpus in the Civil War and on the constitutionality of a Selective Slavery system during World War II, they are likely to waffle on the generally unjustified blanket use of the term "unlawful combatant" to cover all kinds of potential tyranny during the war on terror.
UNDERMINING DIVISION OF POWER
The American founders created a system with three branches of government, in part, with the hope that each would serve as a check on the proclivity of the other branches to grab undue power. The hope was that self-interest and jealousy at attempts by one branch to poach on the territory of another branch could be turned to the service of the liberties of the people.
The system hasn’t worked out as well as the founders undoubtedly hoped. People in the three branches quickly came to understand that when any branch of government grows in power the government as a whole grows and opportunities for other branches are likely to present themselves. So the three branches have not been anywhere nearly as jealous of other branches as one might have liked.
Still, the tradition and the idea of checks and balances retains a certain influence and even a bit of real power. Without it we might not have had a court even willing to consider this particular usurpation.
Unfortunately, the courts tend to be most deferential when they should be most suspicious. It is precisely during times of war, conflict or perceived crisis that government agencies – especially in the executive branch – are most prone to the temptation to abuse their power. So those are precisely the times when the courts and the legislature should exercise the strictest of scrutiny over executive branch decisions and power grabs.
This is even more important when, as in the present instance, government leaders have openly and proudly proclaimed that they don’t know when the war on terror will be won, but that it could be a matter of years or decades before the threat subsides (thanks to their heroic exertions, of course). When the threat is so amorphous that nobody has an idea when it will be over or what constitutes victory, the people and the other branches of government should ratchet up their levels of suspicion.
But the shared perception of crisis usually trumps this imperative. The result is that government grows and seizes power during times of crisis – power that is never returned to its original more modest levels, even if there is a certain retrenchment when the crisis is resolved. That’s one reason government leaders love crises and will manufacture them if outside forces don’t create them often enough.
A SMALL VICTORY
Still, it is worth a moment or two of gratitude for this small victory for traditional American liberties and the concept of due process. Judge Mukasey did assert that the judicial system has some power to intervene when the executive branch seizes people by virtue of a status proclaimed by the president and simply tosses them into the military gulag.
The judge did not take up the question of whether the decision to declare Padilla an "unlawful combatant" was justified or not. Presumably he or some other judge will take it up at a later date, in something resembling a normal judicial process, after a defense attorney has at least had the opportunity to collect information and present a case. Even if the courts turn out to be more deferential than you or I might be to executive proclamations, that’s something – unless the judicial procedure really is just a figleaf that gives the blanket condemnation of suspected terrorists to indefinite detention an aura of legitimacy.
SLOWING THE LOCOMOTIVE?
However the courts handle the case of Jose Padilla, a certain amount of attention to this decision may stiffen the backbones of other judges. That could at least slow down the rush to power now occurring in the wake of the terrorist attacks.
We now see our government, partially in response to new powers blithely granted by Congress in the USA Patriot Act and other legislation and partially simply by acting, carrying on in ways that would normally be associated with a particularly nasty police state. The government has detained suspects, including U.S. citizens, without specific charges or judicial oversight. It has maintained unwonted and unjustified secrecy about whom it has detained and under what circumstances.
The government now has the power in some circumstances to search a person’s home without ever bothering to tell him or her the search has taken place – and then to detain that person indefinitely if it finds something potentially incriminating. It has circumvented both the Geneva Convention (which requires prisoners to be treated as POWs required to give only name, rank and serial number until their status has been determined by a tribunal) and U.S. law in the way it has treated the prisoners at Guantanamo Bay.
This administration has not only sought legislation to enhance its power, it has used the terms "unlawful combatant" and "enemy combatant" – relative newcomers to the political parlance that had seldom been used in times past – loosely to enhance its power further. It is in the process of tearing down the wall between surveillance to acquire intelligence about foreign intentions – which requires a minimum of justification – and surveillance to acquire evidence of a crime, which has traditionally required a higher standard. You can be sure that the result over the long haul will be lower standards to justify surveillance in criminal and domestic cases.
All this does not make the United States a police state – not yet. But the trends are unquestionably in that direction, and for the most part conservatives who generally make noises about the growth of government power are leading the cheers.
