Liars ought to have good memories. -- Algernon Sidney, Discourses on Government (1698)
Jose Padilla may be about to get a New Year’s present to add to his Christmas present.
The Christmas present was the news Mr. Padilla received that he had been indicted for a crime, conviction of which could result in a sentence of life in prison. Though not everyone’s cup of tea as a Christmas present, Mr. Padilla welcomed the indictment because it meant he would no longer be considered an “enemy combatant”. So long as he was an “enemy combatant” he could be held in prison for life without ever having the chance to prove his innocence. Once indicted he was entitled to a trial at which he could prove his innocence. (There remains the risk that if tried and found not guilty, the government will once again call him an “enemy combatant” and keep him in jail for the rest of his life. That is a bridge to cross another day.) Now there is a new turn of events that suggests the Bush administration has overstepped itself and Mr. Padilla may find the very conservative United States Court of Appeals for the Fourth Circuit on his side. Should that happen it would suggest that that court has no tolerance for lying. What remedies the court might then afford Mr. Padilla cannot be known. Here is what happened.
No longer called an “enemy combatant” by the government, Mr. Padilla is no longer entitled to accommodations in solitary confinement in the Navy brig in Charleston, South Carolina. He must await trial in a civilian jail. Out of deference to the 4th Circuit Court of Appeals that had been hearing the “enemy combatant” issues, the prosecution sought permission of the court to move Mr. Padilla. To the prosecution’s great surprise, the court recalled what it had been told by the prosecution on July 19, 2005 and did not like what it was told in December.
In the opinion issued September 9, 2005 affirming Mr. Padilla’s indefinite incarceration as an “enemy combatant” and relying on what it had been told by the government, the court said Mr. Padilla, a United States citizen, had come to the United States after being trained by al Qaeda, in order to blow up apartment buildings in this country. (He was going to do this not as a disgruntled former tenant in one of the buildings but as a terrorist. The court didn’t say that but it can logically be inferred from other language in the opinion since it said, “blowing up apartment building was part of the al Qaeda’s war of terrorism against the United States.”)
The court quoted the president’s redacted memorandum to the Secretary of Defense that justified holding Mr. Padilla as an “enemy combatant” and at one point in the opinion the court said, “he entered this country bent on committing hostile acts on American soil.” That wasn’t, of course, all the court said. It took 17 pages explaining why it was OK to lock Padilla up forever and not let him be tried. It was based on two things: the fact that Mr. Padilla was a bad person and the fact that George W. Bush is a truth teller. Then came the indictment and the motion to hand Mr. Padilla over to the civilian authorities. When that happened the court was confronted with the dreadful possibility that others in the country were right. Mr. Bush and some members of his administration are liars.
The indictment didn’t say that Mr. Padilla was a dreadful man who planned to blow up apartment buildings. According to Attorney General Gonzales who announced the indictment, it says, among other things, that Mr. Padilla “traveled overseas to train as a terrorist with the intention of fighting in ‘violent jihad.’”. It says he was in a terrorist cell from 1993-2001. It observes that he applied for a passport in 1996. Aside from the passport application the things he was doing don’t sound nice but they’re not the same as blowing up apartment buildings in the United States.
Although I’m not a part of the Justice Department, I can state with complete certainty that it has not learned anything new about Mr. Padilla’s conduct since the 4th Circuit said he was an “enemy combatant”. Instead Mr. Bush and the Justice Department have decided that it no longer suits their purposes to stand behind what they told the court a few months ago. Mr. Bush, if asked, would probably say that when he prepared the memorandum that formed the basis for designating Mr. Padilla an “enemy combatant” he had his fingers crossed, believing from his childhood days that crossed fingers exonerate a liar. The rest of us know better. Time will tell if the 4th circuit knows better.
Christopher Brauchli is a Boulder, Colorado lawyer and a political columnist. His column appears weekly in the Daily Camera. Brauchli.firstname.lastname@example.org