The Green Papers
The Green Papers

How the Case of Jose Padilla strains American Civil Liberties

by Richard E. Berg-Andersson Staff
Wed 2 Jun 2004

It is one of the evils of war that there seems frequently to be a certain incompatibility between the demands of military necessity and a punctilious regard for the civil liberties of the individual. Certainly in war emergencies the citizen finds his liberty curtailed and his rights abridged in ways that in times of peace would seem intolerable.--

ROBERT F. CUSHMAN: CASES IN CONSTITUTIONAL LAW (from his comments introductory to the case Ex Parte Milligan)

On Tuesday 1 June 2004, Deputy Attorney General James Comey held a press conference at the Justice Department in Washington, D.C. describing, for the first time in quite some detail, the Federal Government's case against Jose Padilla, an American citizen who once was a youthful member of a street gang in Chicago and spent a few stints in jail for various offenses- the most recent (prior to his present legal troubles) being in Florida upon conviction for aggravated assault during a road rage incident more than a decade ago. Somewhere along the line, Padilla converted to Islam (most accounts have him converting in prison but the more reliable accounts have him so converting sometime after having served time in that Florida jail) and changed his name to Abdullah al-Muhajir (though it is as "Jose Padilla" that he has become, in effect, the poster boy for the battle between Authority and Liberty in relation to the War on International Terrorism).

Padilla was arrested by the FBI at Chicago's O'Hare International Airport upon returning to the United States from Pakistan via Egypt (he had fled into Pakistan from a Taliban/Al Qa'eda outpost in Afghanistan as the War on International Terrorism unfolded in the wake of the terrorist attacks on the United States on 11 September 2001). About a month thereafter, roughly two years ago as I type this, Padilla was declared an "enemy combatant" and turned over to military officials, thus denied access to the civilian courts of the United States.

The question of moment is whether what was done as regards Padilla can pass constitutional muster (a legal question that is, in fact, currently before the U.S. Supreme Court, Oral Argument in Rumsfeld v. Padilla having been heard this past 28 April). My own answer to this question is a resounding "No!"

The legal precedent that seems to be the most relevant here is the case of Ex parte Milligan [4 Wall. (71 U.S.) 2], decided by the United States Supreme Court back on 3 April 1866 (although the written opinions in this case were not issued until the following December!). By a unanimous 9-0 vote, the high Court ruled that the President of the United States did not have the authority to allow civilians to be tried by military tribunals when the civil courts are still in operation in the jurisdiction in which the defendant is arrested: the narrowest possible vote, 5-4, decided that Congress could not authorize such military trials of civilians who were not in an actual war zone.

Lambdin P. Milligan, a citizen of Indiana, was a so-called "Peace Democrat" during the American Civil War, "Peace Democrats" being the term for those who believed that the States which had seceded from the American Federal Union and thereafter joined the Confederacy should be allowed to go their own, separate way in peace (hence the name); they were, as one might conjecture, vehemently opposed to the war (and- in Milligan's case- presumably the State of Indiana, along with its sister States in the North, providing troops for the conflict). Eventually, by early October 1864, Milligan had become a leader in a home-grown militant group that, among other things, plotted to free Confederate Prisoners of War from Union prison camps, march them into territory then still under Confederate control and there train them to become a Rebel army which would thereafter invade Indiana; however, before any action could be taken along these lines, Milligan was arrested at his home on orders of the U.S. military commander in Indiana.

Although Milligan had never served in the United States armed forces, he was- a little over a fortnight after his arrest- tried before a military tribunal, convicted and sentenced to be hanged, such hanging scheduled to take place in May 1865- a little over six months after his arrest- by which time, President Abraham Lincoln had been assassinated and Andrew Johnson had, as a result, succeeded to the office. President Johnson approved the sentence (and, by extension, the methods under which Milligan's conviction and sentencing had been attained). To make matters even more complicated, while he awaited execution, a civilian Federal court in Indiana had convened a grand jury which failed to hand up a bill of indictment against Milligan for any Federal crime!

A little over a week before he was scheduled to be hanged, Milligan sued out a writ of habeas corpus before the Federal Circuit Court in Indiana, arguing that the military tribunal which had tried, convicted and sentenced him had no legitimate jurisdiction over him and that he was being held (and hence was about to be executed) illegally. Milligan's case only resulted in a divided decision on the issue at the Circuit Court level and- by leave of U.S. Supreme Court Associate Justice David Davis (in his capacity as Circuit Justice)- the case was next presented to the full United States Supreme Court.

Justice Davis ended up writing the Opinion of the Court, one in which he chided the military authorities who had arrested Milligan. noting that [t]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority... This Nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution... If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them... For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government (Davis further wrote) that in a great crisis, like the one we have just passed through, there should be a power of suspending the writ of habeas corpus... In the emergency of the times, an immediate public investigation according to law may not be possible; and yet the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit, in the exercise of a proper discretion, to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to be forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

Davis went on: It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on the States in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal States should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes the civil administration.

Davis concluded that [i]t is difficult to see how the safety of the country required martial law in Indiana. If her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them... Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

Now let us take a look at the situation as regards Jose Padilla:

Taking the Federal authorities at their word that Padilla was, indeed, the moral equivalent of an enemy soldier coming back to the United States bent on carrying out acts of war- in the form of terrorism- within this country and assuming that this, in and of itself, can constitute military "invasion", such "invasion" clearly was no longer a factor the moment Padilla was arrested- at which point, to quote Justice Davis, "that invasion was at an end". Further, the courts in Chicago were not at all closed, the civil administration in the State of Illinois not the least bit deposed! In fact, on the very day Padilla was taken into custody- Wednesday 8 May 2002- surely the U.S. District Court for the Northern District of Illinois was functioning normally and, on the State level, the Circuit Court of Cook County, Illinois was certainly well operating. Therefore, where was- in May 2002 Chicago- the lack of means to effect "an immediate public investigation according to law"? At precisely what time on the 8th of that month were the "courts and civil authority" of the City of Chicago, the State of Illinois, or the United States of America operating in that great metropolis on Lake Michigan actually "overthrown" and for just how long? Certainly *I* don't recall hearing anything about it!

In his 1 June press conference, Deputy Attorney General Comey argued that, had Padilla- in fact- been brought into the civilian court system, he would quite likely have (to use the police jargon) "lawyered up" and resultant counsel would surely have advised Padilla to avail himself of his right to remain silent (and note well these words: "right to remain silent"-- not "privilege", not "grant", not "consideration for services rendered", but "right"!), thus preventing the powers that be from getting vital information that they were only able to get from Padilla were he were not given the opportunity to "lawyer up" in the first place. Them's, however, the risk of the game in Free Society: for it was the FBI (presumably in coordination with other appropriate law enforcement entities) which determined if and when they were going to actually arrest Padilla (certainly Padilla doesn't seem to have expected being arrested!)

These authorities could have, for instance, merely kept him under further surveillance once he was back on American soil (perhaps in order to thereafter identify other persons who might have been involved in the plot); yes, maybe they feared losing him "between the cracks" and, thus, made the call to take him into custody as soon as possible- but they made that call not knowing for sure exactly how his case would be disposed of once they had captured him. It is flat-out wrong for the authorities to thereafter be able to do an end run around the Constitution by simply redefining his status so as to justify their already having done so! And allowing government officials- on their own- to define, say, a City of Chicago otherwise peacefully going about its business on 8 May 2002 as Justice Davis' "locality of actual war" merely because Padilla allegedly happens to be an Al Qa'eda operative (hence a "soldier"/ the "enemy") is so clearly fraught with peril to constitutional Rights and Liberties!!

The Nation's Chief Executive, for whom Mr. Comey and the FBI both work, himself takes an oath to "preserve, protect and defend the Constitution"- not "preserve, protect or defend it": note well that this requirement is not multiple-choice, however difficult it might prove to balance these three objectives in a case such as that presented by the likes of Jose Padilla/Abdullah al-Muhajir.

Please know that I am not here at all attempting to make Padilla out to be any better than he actually is. If, in fact, even only some of that of which the Feds are accusing him be true, then he has committed most serious crimes and- of course- should be tried and, upon conviction, severely punished to the fullest extent of the law. At the same time, however, he should not be treated any worse than any other criminal defendant- Federal or State- who happened to have been arrested in the Chicago area back on 8 May 2002.

Despite his protestations to the contrary, I question the timing of Mr. Comey's press briefing and see it as a clear shot across the bow of a United States Supreme Court currently mulling over Rumsfeld v. Padilla (one presumes that a decision on the case will be rendered by the high Court before the end of the current Term of Court toward the end of this month). Despite the Judiciary's penchant for referring to the Executive and Legislative departments as the so-called "political" branches of government, the courts are not so far in a vacuum that political breezes which might be swirling about the Nation's Capital would not then be able to brush against the Nation's highest court! Its nine Justices certainly bring their own political biases and personal constitutional views into their work in some form or fashion, no matter how unobtrusively (and the many words eminating from that high Bench in the course of issuing opinions- whether controlling, concurring or dissenting- would, indeed, be so much the poorer in quality were this not the case!)-- they read the newspapers and magazines, they watch the news on TV: they certainly know what's going on in the world outside the Supreme Court building! As with jurors hearing evidence in a trial court a few levels below theirs, their major duty is to be impartial-- but such impartiality does not necessarily imply abject ignorance!

Nevertheless, putting aside the admonitions of Justice Davis in his opinion in Ex parte Milligan (however much or little of his words might ultimately survive the inevitable decision in Rumsfeld v. Padilla), there is very good reason to not deny Jose Padilla his constitutional rights and that is so as not to give the enemy- Al Qa'eda- any further ammunition with which to so well spread their vitriolic anti-Americanism. It is one thing when a group like Al Qa'eda tells lies and distortions about American actions and intentions in order to rile up potential recruits for their twisted cause, it is quite another for us to actually go ahead and act in such a way that projects at least the slightest germ of truth into that which Al Qa'eda preaches! As would also be the case in relation to the recent furor over the Prisoner Abuse Scandal at Abu Ghraib Prison in Iraq, I can here only close by saying:

Answer not a fool according to his folly, lest you be like him yourself.-

Proverbs 26:4 [RSV]

Modified .