Jose Padilla case not good model for liberty lovers

T he Bush administration continues to defend, in the case of Jose Padilla, a legal theory more suited to an absolute monarchy or dictatorship than to a society operating under the rule of law.

Continuing to maintain such a stance materially weakens the case that the current struggle with terrorists is one between “civilization” and “barbarism.” The terrorists are certainly barbarous, but working to undermine the rule of law is hardly a hallmark of civilization.

Jose Padilla, remember, is the former Chicago gang member and convert to Islam who is accused of working with al-Qaida to plant a radioactive “dirty bomb.” He was arrested in May 2002 in Chicago’s O’Hare airport on a flight from Pakistan. He has since been detained in a military brig in South Carolina, with no charges filed against him.

Last year the U.S. Supreme Court declined to rule in Padilla’s case, saying he had filed in the wrong judicial district. But it ruled that Yaser Esam Hamdi, who had been born in the U.S., raised in Saudi Arabia and captured on the battlefield in Afghanistan, could challenge his detention in U.S. courts rather than a military tribunal. Hamdi has since been released and flown to Saudi Arabia.

In February a federal judge ruled that the U.S. government must charge Padilla with a crime or release him. The government appealed, and Tuesday, argued before the 4th Circuit appeals court that the government has the right to detain suspects in the war on terrorism “for the duration of the hostilities.”

That leaves any number of troubling questions open. Congress authorized military action against Iraq, but it hasn’t declared war on “terrorism” as the Constitution seems to require. Since terrorism is a tactic rather than a nation or a state, we have no idea what would constitute victory or when the war will be over. Thus the administration is arguing for indefinite detention at the sole discretion of the president, with the judiciary having no say in the matter.

So much for separation of powers.

“It is hard to believe that the government thinks it will win this case in the end,” Robert Levy, a constitutional scholar at the libertarian Cato Institute said. “I think they’re maneuvering to drag the detention out as long as possible but will come to a settlement in the end, as in the Hamdi case.”

As Levy also argues, the “real underlying issue in this case is just how derelict Congress has been.” It may be true that it is inappropriate to handle terrorist suspects strictly through the criminal justice system. But if new rules are required, it is Congress’ job to write them. So far it has not done so.

That leaves Jose Padilla in the brig and the administration making the breathtaking case for essentially dictatorial powers for an indeterminate period. That is thoroughly unsatisfactory and hardly the model of civilized, liberty-loving behavior we would like to contrast to terrorist barbarism.