Wall Street Journal - November 25, 2005
Padilla in Court
It's hard to pinpoint the precise moment when Jose Padilla became a liberal icon in the war on terror.
Was it June 2002, when President Bush, exercising the authority that other wartime Presidents have used, declared him an enemy combatant? Padilla had been arrested the previous month at O'Hare Airport, en route home from Pakistan, on allegations that he planned to detonate a dirty bomb in the U.S.
Or perhaps the moment was December of that year, when a federal judge in Manhattan ruled that the President has the constitutional authority to detain enemy combatants. Padilla's case has since bounced around the federal judiciary, and this September a three-judge panel on the Fourth Circuit Court of Appeals ruled unanimously that the President "unquestionably" has the right to detain a U.S. citizen who has taken up arms against his country. The appeals court invoked the precedent set by the Supreme Court last year in the Hamdi case, which concerned another American citizen being detained as an enemy combatant.
Somewhere along the way, Padilla became a symbol -- not of the sort of threat we are up against in the war on terror, but as a victim of the U.S. government. A modern version of Sacco and Vanzetti, Alger Hiss or the Rosenbergs. Largely absent from the public debate over one man's rights has been any discussion of the rights of the rest of us -- namely, the right to be protected against enemy attack.
That's a long preamble to our reaction to this week's news that the Justice Department has brought criminal charges against Padilla in a federal court in Miami. Fair enough. If the Administration has gathered enough evidence it can use in open court to convict Padilla, that's a much-to-be-hoped-for outcome. At the same time, a criminal indictment has the regrettable effect of taking the focus off the vital constitutional principle at issue here.
This is already happening, as seen by liberal reaction to Padilla's indictment, the general gist of which is that the Administration has "finally" found something with which to charge him. The implication -- contrary to what the courts have ruled -- is that he is an innocent man held illegally for three and a half years. It's more accurate to say that whatever intelligence Padilla could have provided by holding him for interrogation has already been gathered, so the need to keep him under wraps has ended.
The Administration is blasted, too, for not having indicted Padilla on the original dirty-bomb accusations or on the charges, made public in June 2004, that he was plotting to blow up high-rise apartment buildings in the U.S. However, protection of intelligence sources and methods makes presenting evidence on those accusations difficult without compromising national security, and in any event a conviction on other terrorism charges would still be a conviction. Mobster Al Capone went to jail for tax evasion.
We'd also note the irony that the indictment of Padilla that liberals are now celebrating (albeit in mocking fashion) was only possible because of a liberal taboo. As Attorney General Alberto Gonzales said Tuesday, the evidence needed for a criminal prosecution was obtained because of "vital provisions of the USA Patriot Act." And speaking of the Patriot Act, its renewal will pass Congress with large majorities as soon as certain Senators (Arlen Specter) stop delaying it in order to pose for admiring liberal editorials.
Padilla's indictment comes on the eve of a showdown over his case in the U.S. Supreme Court, which was getting ready to consider whether to hear Padilla's appeal of the Fourth Circuit decision. Monday was the deadline for the Administration to file its legal arguments. Now that Padilla has been indicted, the appeal is probably moot -- which is too bad. While the Bush Administration is right to use whatever legal tools it wishes to fight terrorists, we can't help but wonder if, in choosing not to take Padilla's case to the Supreme Court, it is missing a chance at a larger victory for executive war-fighting authority.
Most accounts of the Supreme Court's Hamdi decision focus on its ruling that an enemy combatant must be allowed to challenge his detention in court. But more fundamentally, the Court upheld the authority of the President to detain enemy combatants, including U.S. citizens. That's the key finding of Hamdi and, we suspect, it would have been the key finding of Padilla, had the High Court decided to hear it. But a Supreme Court ruling is something of a roll of the dice, and it's hard to fault the Administration for deciding to take another route.
There may even be an educational benefit in letting the public inspect the evidence against this man who has become a civil-liberties martyr to the American press and the ACLU. Perhaps Padilla's lawyer will soon be a fixture on cable television, like O.J.'s. Meanwhile, Americans will be able to inspect the evidence against him for themselves.