In a landmark victory for constitutional protections and the separation of powers in the post-9/11 era, a panel of the 2nd U.S. Circuit Court of Appeals issued a 2-1 ruling barring the president from declaring a U.S. citizen an “enemy combatant” without congressional authorization. In a decision likely to influence another case on enemy combatants before the Supreme Court case, the federal appeals court ordered the government to release U.S. citizen Jose Padilla from military custody in thirty days, with the option of transferring Padilla to civilian authorities for a criminal trial. The ruling marks a growing judicial backlash against unfettered presidential authority during a period of war. Given the week’s events, the ruling couldn’t have come at a better time. With controversy over the status of Guantanamo detainees and the PATRIOT Act growing to a feverish pitch, it’s about time the Constitution gained a voice, and an arm strong enough to back it up.

If the greatest threat to constitutional freedoms weighs heaviest on the backs of the minority, then a prime candidate for this can easily be found in enemy combatants such as Jose Padilla. A poor kid from a Puerto Rican family who cut his teeth on the streets of Chicago, it didn’t take long for Padilla to find his way from gang life to the arms of the law by the time he was 13 years old. His run-ins with the law seemed to end after he spent a year in a Florida jail, converting to a radical sect of Islam in the process. After stints in a series of fringe mosques and Afghani schools, Padilla had a meeting with Al-Qaeda chief of operations Abu Zubaydah to build a so-called “dirty bomb” bound for the United States, FBI officials allege. Since Padilla’s arrest, however, intelligence officials have openly discredited Abu Zubaydah, calling his reliability “uncertain at best”. Moreover, the Associated Press released a story in August quoting law-enforcement officials who have dismissed Padilla’s role in Al-Qaeda as a “small fish”, whose plans never got past the drawing board.

These large problems with the government’s case might explain why, a day before conservative Judge Michael Mukasey was set to rule on Padilla’s status as a material witness in the “dirty bomb” case, the Defense Department removed the prisoner in the middle of the night to a Navy brig in Charleston, South Carolina. The next day, Attorney General Ashcroft held a press conference declaring Padilla an “enemy combatant” who would be held in the military brig without a warrant, access to an attorney, or any charges filed against him. The entire episode reeked of under-handed tactics and desperate attempts by the Justice Department to show, with the capture of Padilla, that it was effectively fighting the war on terror and keeping the “bad guys” locked away -- even if that meant suspending all constitutional protections of the accused in the process.

After a year and a half of physical isolation and legal abandonment, it is time that Padilla has his day in court. As Senator John McCain has openly questioned, if the government has enough evidence to formally charge Padilla, why are they so adamantly opposed to presenting it before a judge? Hopefully, in thirty days time, the truth behind Padilla’s imprisonment will come to light. However, with the option still open to challenge the panel’s ruling, the government can at least temporarily keep him behind bars as an “enemy combatant” at the president’s discretion.

Obviously, the repercussions of this case extend far beyond the rights and livelihood of a man who’s turned his back against authority for much of his life. The horror is this story could happen to anyone -- citizen or non-citizen. The actions of the Administration in this case defy the fundamental role of our constitutional rights: protecting the rights of the minority against the tyranny of the state. If all of us can’t find something to get riled up about in the case of Jose Padilla, then the Constitution will have lost its last line of defense against tyrannical rule -- an informed and active populace.

*Brigid O’Neil is a researcher at the Center on Peace & Liberty at The Independent Institute in Oakland, California.

Copyright 2003 Independent Institute

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