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Padilla v. Rumsfeld

A recent Opinion Journal entry illustrates for me what has gone so horribly wrong with America of late:

Court Backs Dirty Bomb Plotter
A pair of judges on the Second U.S. Circuit Court of Appeals have ordered the Pentagon to release enemy combatant Abdullah Al-Muhajir, né Jose Padilla, from military custody. Padilla, a U.S. citizen, was picked up in May 2002 at O'Hare International Airport after flying back from Pakistan; the following month, Attorney General John Ashcroft announced and explained the arrest:
On several occasions in 2001, he met with senior al Qaeda officials. While in Afghanistan and Pakistan, Al Muhajir trained with the enemy, including studying how to wire explosive devices and researching radiological dispersion devices. Al Qaeda officials knew that . . . as a citizen of the United States holding a valid U.S. passport, Al Muhajir would be able to travel freely in the U.S. without drawing attention to himself. . . .

In apprehending Al Muhajir as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb."

In today's decision, Padilla v. Rumsfeld (link in PDF form), a split three-judge panel holds that "clear congressional authorization is required for detentions of American citizens on American soil," and that the September 2001 declaration of war does not constitute such authorization.

Under the court's order, the Defense Department must release Al-Muhajir from military custody within 30 days. The court leaves open the possibility that he can be held in the criminal-justice system--either as a suspect or as a material witness--but he "will be entitled to the constitutional protections extended to other citizens."

One can expect the government to appeal the ruling, either to the full Second Circuit or to the Supreme Court. But perhaps it's also worth asking Congress to take up this issue. Some lawmakers, notably Sen. John Edwards, a presidential candidate, have been championing the civil liberties of would-be terrorists, as if setting off a dirty bomb in an American city were a matter of no more gravity than an ordinary mugging or embezzlement. Why not force all members of Congress to go on record for or against this proposition?

Meanwhile, the notoriously liberal Ninth Circuit, in Gheredi v. Bush, holds that noncitizen terrorists at Guantanamo Bay also are entitled to lawyers. Given the Ninth Circuit's batting average in the Supreme Court, this preposterous ruling seems highly unlikely to stand.

Re-read the next-to-last paragraph especially carefully:

Some lawmakers, notably Sen. John Edwards, a presidential candidate, have been championing the civil liberties of would-be terrorists, as if setting off a dirty bomb in an American city were a matter of no more gravity than an ordinary mugging or embezzlement.
Let's review the Fifth Amendment to the US Constitution, shall we (italics mine)?
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Clearly Jose Padilla has been deprived of his liberty. According to the court ruling:
For the past eighteen months, Padilla has been held in the Brig in Charleston. He has not been permitted any contact with his counsel, his family or any other non-military personnel. During this period he has been the subject of ongoing questioning regarding the al Qaeda network and its terrorist activities in an effort to obtain intelligence.
So if he has been deprived of his liberty, has he had the due process of law? Has the government made its case against him in court, with a jury empowered to hear evidence and make a decision as to his guilt or innocence?

Jose Padilla is not a person with whom I would want to associate. He "was convicted of murder in 1983, and remained incarcerated until his eighteenth birthday. In 1991, he was convicted on a handgun charge and again sent to prison." But this is irrelevant to the matter at hand. Whatever his past transgressions, he is a human being with certain inalienable rights. Moreover, as a US citizen, our Constitution places a special obligation on the government to avail him of those rights.

Besides, whatever any of us may think of Padilla as a person, the words of Abbie Hoffman ring true:

You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists.
Two letter writers to the New York Times put it well. One wrote:
The president claims that he has the right to seize any American citizen, hold him indefinitely and apply psychological pressure until the citizen cracks and tells his captors what the president wants to hear.

Furthermore, the president argues that no court should be able to review his actions, under any circumstances. It is hard to imagine a more direct attack on the rule of law.

And from the other:

As an immigrant to this country, I found that my proudest moment was to serve on a jury. A person is innocent until proved otherwise by a jury of one's peers. It is not sufficient for the police, the prosecutor, Attorney General John Ashcroft or the president to be convinced of a person's guilt. It is the jury that counts.

If the president can round up people based on evidence that no one else can judge, have we not lost our democracy and gained a king?

How Americans can not be worried to their very cores about this is beyond me.

Is it possible that we, the citizens of the United States, are no longer deserving of the freedoms our forefathers fought and died to gain for us?


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What makes you think that Americans are not worried about this to their very cores?

What have you done about it, besides write a blog entry? Have you written your congressperson or organized any demonstrations?

What makes me think Americans aren't worried about this to their very cores? The fact that there is a large swath of Middle Americans who believe that George W. Bush is doing a great job, thanks, and who seem poised to reelect him.

As for what I'm doing about it, first, I have sent a number of letters to my Representative and Senators about various issues related to civil liberties. Second, if you're implying that blog entries aren't useful in and of themselves -- and I've written many on the subject over the last year or so -- then I disagree.

I don't know how many people read pseudorandom, but even if it is just a few, heck, even if I'm the only one, the entries you write make a difference. Having met and talked with you, I realize you're not just spouting off, you've thought long and hard about the issues. That's why I respect and take into account what you have to say, and that includes issues on which we disagree.

I came upon your website surfing the web, I must say that you have very interesting thoughts and would incourage you continue.

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