Jose Padilla has been found guilty in a court of law today. To be perfectly frank, I have no real understanding of whether he is guilty of the charges against him or not; he could be innocent, or he could be guilty. I don’t know that aspect of the case well enough to judge. Maybe he was a terrorist in training, for all I know. However, that is not the aspect of the case which I find most important; it is, rather, the way his case was handled and the impact it has on the rights, freedoms and liberties of all American citizens.

Whatever Jose Padilla is or is not, he signifies a disturbing new power the government has granted itself: the power to detain and interrogate any American citizen in violation of their Constitutional rights.

Padilla was arrested on May 8, 2002 as a “material witness” stemming from a warrant issued after the 9/11 attacks. It was at the height of terror-related hysteria, at a time when the government was actively stoking such fears and looking for ways to expand their powers. After a month of imprisonment and two days before the “material witness” warrant was to be challenged in court, Bush ordered that Padilla be detained as an “enemy combatant” under authority theoretically granted to Bush by the Iraq War Resolution. He was moved to a military prison without notifying his family or attorney.

Right here we get into distressing territory: the idea that Bush has the power to invalidate the Constitution because Congress passed the Iraq War Resolution, saying:

That the president is authorized to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This power is clearly limited to people who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” or people who “harbored such organizations or persons.” Even if we accept the original charges that Padilla joined al Qaeda and planned a “dirty bomb” attack on the U.S., he still would not fall into the classification described by the Iraq War Resolution. here is not even any question that the Bush administration went far, far beyond the law, or that the law would be unconstitutional even if it had granted Bush such powers. This was a signal to a new way of doing things at the White House: create new, extra-Constitutional powers out of whole cloth simply by claiming that they exist where they do not, and then maneuver to keep those powers from being challenged. If someone points out that they do not exist, simply keep insisting that they do, then suggest that such powers are necessary for national security, and then accuse the person who brought it up of sabotaging our safety.

The Bush administration declared that it had the power to consider Padilla an “enemy combatant,” thus depriving him of any constitutional protections. The entire idea of “enemy combatants” was a legal fiction created by the Bush administration not out of necessity in dealing with Padilla, but rather out of the desire to ignore the law. They wanted to do whatever they wanted with Padilla, so they simply grabbed the legal definition that suited them best, and under cover of national fear and panic, ran with it. In this case, they wanted a definition that made Padilla an “unperson.”

“Enemy combatant” (also called “unlawful combatant”) status was used to declare Padilla did not have any rights, not even as a prisoner of war under the Geneva Conventions. It was similar to the justification of sending “terrorist” prisoners to Guantanamo Bay: because it was not on U.S. soil, it could evade responsibility under U.S. law, and the administration similarly claimed it was not answerable to the Geneva Conventions. The camp was not located at Gitmo because it was the best location for a prison camp, it was located there because it was the best way to evade U.S. and international law.

Padilla was held without charges for three and a half years, and was subjected to questioning without the right to consult an attorney. These facts are not in question. They clearly violate Padilla’s Fifth Amendment rights (No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … 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….) and his Sixth Amendment rights (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.)

Padilla:

• was held without charges filed
• was interrogated without the right to remain silent
• was not allowed access to due process of law
• was not granted a speedy trial
• was not informed of the nature of the charges against him while being held in detainment
• was not allowed access to his attorney at multiple key points

Remember, we are talking about a mindset many conservatives have which, though honoring the Second Amendment, sees most of the rest of the Bill of Rights to be an annoying set of trivialities that allow the ACLU to set rapists and murderers loose on the streets. In this mindset, half of the Bill of Rights, specifically the 4th through 8th Amendments, is dead to them. They would probably love to call them “outdated,” but that would only knock down the 2nd, so instead they just obviate and ignore the ones they don’t like.

The Padilla case made its way through the courts, through appeals courts and was rejected initially by the Supreme Court on technical grounds. Eventually, the Bush administration backed down before the case could finally make its way to the Supreme Court. The administration removed Padilla to a civilian court, and completely dropped almost all allegations against Padilla that were issued after his arrest, and did not use any of the information gained by interrogating Padilla during those years in detainment.

However, this is hardly a comfort. The administration did these things not because they had suddenly seen the light, but because they had to in order to avoid being ruled against, to avoid having their illegal actions exposed in further detail. The actions they took similarly protected them from having their powers to do this again taken away.

In the end, the Bush administration violated the Constitution, avoided rulings against them for it, and have maintained their ability to do the same thing again. Padilla’s innocence or guilt is immaterial to this dilemma.

There have been a few steps forward. In June 2006, the U.S. Supreme Court ruled that prisoners at Gitmo did have Geneva Convention rights. However, much of the issue still remains in legal limbo while still practiced by the government.

Just as the administration has evaded accountability and defied Congressional authority to subpoena members of the administration, it evades the law by violating it and then performing quick side-steps and legal maneuvers designed to keep such cases from coming before a court. It is the definitive abuse of power: the administration’s prime duty is to execute the laws of the nation. Instead, it violates them at will and then uses a variety of tactics to make sure there is no accounting–whether it is the outright destruction of evidence (remember all of those “accidentally” lost emails?), pulling a case just before they are going to have a court decide on the matter, or simply not prosecuting themselves as they are bound by law to do. By abusing the supreme power of legal execution, they simply refuse to prosecute themselves for all the crimes they commit, knowing confidence that the “opposition” party will not have the guts to push them on it now or pick up the case after the current administration leaves power.

Some might excuse these abuses in the name of security; we have a “war on terror” to prosecute, after all. Do you want to go be an ACLU-card-carrying terrorist lover, or a patriot defending your country? Padilla is human trash and deserves to be treated that way. We must protect ourselves, and if that means getting tough with the bad guys, then too bad.

The problem with this attitude is that (1) assumes that we must violate our own highest laws to maintain security, and (2) that somehow decimating the legal and civil rights of Americans is going to protect us at all. Neither of these are true. We can maintain the law and fight terrorism; the idea that these are at odds is a fiction created by a segment of our society that prefers a police state. Look at Padilla: he’s going to prison, probably for a long time, and could have been convicted such without the violation of the Constitution. Assuming that he is what the government claims he is, he is no longer a threat. There was no need to violate the laws of our nation in his case nor in any other.

Acceptance of such illegal actions by the government is also based on the false sense of security that “it won’t happen to me.” That we only prosecute bad guys, that innocents don’t get caught up in the system. This is the same sense of rational blindness that allows so many to accept the death penalty, that allows people to ignore the fact that we do kill innocents; while ignorant, at least this view commits a lesser immorality. But there are those who are fully aware that we do kill innocents, but feel that it is an acceptable price to pay… and still, these people simply believe that it will never happen to them.

Even if they are right, and it will never happen to them, that is even worse than the see-no-evil types who believe innocents are never caught up in the system. If they truly believed that it could happen to themselves, that they could be arrested at an airport, declared an “enemy combatant,” and thrown into a prison cell for years without charges being filed–at least then they would be upholding a system with the willingness to pay the ultimate price that system demands. But they don’t. They are perfectly willing to sacrifice nameless and faceless others, but not themselves, just as so many Iraq War supporters vehemently insist the Iraq War is absolutely necessary, but would never volunteer to fight it themselves.

Acceptance of what the government has done also presumes that such powers will not be abused–when in fact, such powers are always abused.

Frankly, I am disgusted by the cowardly, frightened-child attitude which does not protest such actions. America is the Constitution; that is our true foundation, our true identity. Without it, we are no better than any tin-pot dictatorship, and there is little left to defend relative to anywhere else or anyone else.

We can never defend ourselves by destroying what we are.