The Man In The American Dungeonow Much?

The Man In The American Dungeon
September 23, 2003
by John Bloom

NEW YORK, September 23 (UPI) -- Why is there no media outrage over Jose Padilla?

All we have is dry bare-bones reporting on the first case since the founding of the republic in which an American citizen gets thrown into a dungeon and left there. It's like one of those guys who disappeared into a turreted castle in medieval times. You could show up at the gate of Chillon with your petition, but you'd always be turned away. Padilla has been locked in a room for one year, six months, and counting.

To give you some idea of just how far this has gone . . .

In the only legal precedent that the government cites as its justification for throwing away the key on Padilla--"Ex parte Quinn," involving eight Nazi saboteurs captured on American soil during World War II--the Nazis were treated better than Padilla. They were given a lawyer. They were charged. They were tried. Seven of them were not even American citizens. So the German Nazis, attempting an act of violence against the United States, were given more consideration than Jose Padilla, an ineffectual small-time Chicago ex-con.

In citing "Ex parte Quinn," the executive branch is actually arguing against itself. To find a real precedent for the Padilla case, you have to go back to King George III, who would occasionally hold people in preventive detention if they were deemed "traitors." Even then, habeas corpus would eventually be imposed by the king's own courts. In this case the government is using a novel, if frightening, argument: as long as Padilla is not charged with anything, habeas corpus doesn't apply.

Henry VIII couldn't have said it better.

Here's what we know about Jose Padilla (and it's precious little):

He is an American citizen.

He was arrested on American soil--namely, Chicago's O'Hare Airport.

He's been held in solitary confinement since May 8, 2002, with no access to a lawyer, with no idea that he even has a lawyer, with no contact with the outside world, with no knowledge of his situation except what he's told by his military handlers.

For one month he was held as a "material witness" in Manhattan. When it became apparent that American judges wouldn't go along with the government's plan to deny him a lawyer, he was transferred to a naval brig in Charleston, South Carolina, and declared to be an "enemy combatant."

Even by the standards of the PATRIOT Act, a foreign national can only be held for seven days without charges being filed. This is an American citizen who's been held for 18 months.

Michael B. Mukasey, chief judge for New York's Southern District, has repeatedly ordered the government to allow Padilla access to his attorney. The government has repeatedly refused.

His attorney, Donna R. Newman, has never met her client but has repeatedly asked the government to deliver letters to Padilla. The government accepts the letters but refuses to promise that they'll be delivered.

Since Padilla's alleged crime has not been reviewed by any judge, grand jury or other public body, all we know about it comes from press releases and selective statements by the government. But here's what they say:

Padilla met with Al Qaeda operatives in Afghanistan and Pakistan.

Padilla was given instructions on how to wire a bomb.

Padilla had plans to explode a "dirty bomb" in an American city.

The evidence to hold Padilla comes from a "declaration" by Michael H. Mobbs, a Defense Department "special adviser." (I have no idea what that means.)

If Padilla were allowed to meet with his lawyer, he might pass terrorist messages. (Judge Mukasey dismissed this as "gossamer speculation.")

We also know, through questioning of the government, that:

Padilla had no bomb when arrested, and no bomb was found in any search.

Padilla had no bombmaking equipment.

Padilla had no target.

Padilla had no plan.

Since he's been in jail since May 2002, most of his meetings in Afghanistan and Pakistan were prior to 9/11, which means they were at a time when there was no "enemy combatant" designation, and a time when the U.S. was actually sending aid to the Taliban.

What apparently happened--again, this is speculation, because there's no formal written complaint--is that Padilla tried to curry favor with Al Qaeda. Since Al Qaeda doesn't trust people who work for money, people who have criminal records, or people who show up uninvited--since those are the kind of people who can turn on them at any time--they apparently thought, "Okay, we'll show him how to wire a bomb," but didn't really reveal anything to him.

Whatever happened, it's something for a court to sort out, not a kangaroo Star Chamber. The remarkable thing about Padilla v. Rumsfeld--the case now making its slow way through the court system in an effort to force the government to either charge Padilla or release him--is the number of friend-of-the-court briefs filed by arch-conservative organizations.

Those conservatives who interpret the Constitution strictly- -and this case goes to the essence of both the 5th and 6th Amendments--are horrified by the implications of unlimited executive detention. As Fourth Circuit chief judge J. Harvie Wilkinson, a strict conservative, has already written: "With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel."

He was actually writing about the other American citizen being held without charges being filed--Yaser Hamdi. But at least Hamdi was captured in Afghanistan. "We aren't placing our imprimatur," concluded Wilkinson, "upon a new day of executive detentions."

Besides the constitutional implications, there's even a specific federal law passed in the early seventies (Title 18, section 4001(a) of the U.S. Code) that states the issue unequivocally: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

There has been no act of Congress.

And in the face of this, they still hold Padilla.

This is tyranny. At this point it's tyranny for only one man, but that makes it no less tyrannical.

Charge the man. Bring him into the light.

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