If "practical limitations" are all that we have left, then let us use them to fullest advantage.
The opening sentence of an August 17, New York Times editorial reads: “It is hard to disagree with the jury’s guilty verdict against Jose Padilla.” There follows not a single word in support of this dogmatic editorial pronouncement – not a word presenting the charges against Padilla or the evidence in support thereof.
But take a close look at those charges and that evidence and I submit that you might find abundant reason to disagree with the jury’s guilty verdict
Despite this initial sentence, the remainder of the Times’ editorial consists of a commendable criticism of “the Bush administration’s serial abuse of the American legal system.” I will have much to say about this “abuse” shortly.
But first, let’s take that close look at the charges and the evidence against Padilla.
The Charges and the Evidence.
Padilla and his two co-defendant were found guilty of conspiracy to murder, kidnap and maim overseas, and of providing material support for terrorists. These offenses could result in sentences of life in prison. Sentencing is set for December 5.
The prosecution failed to specifically identify any of the allegedly intended victims of murder, kidnapping and maiming. Furthermore, the defense claimed that the so-called “material support” was, in fact, contributions to Islamic charities.
The crime for which Padilla was initially accused and arrested in June, 2002, plotting to set off a radiological “dirty bomb,” played no part in the trial. From Moscow, the Attorney General, John Ashcroft, announced Padilla’s arrest in Chicago. That announcement and arrest took place, coincidentally or not, just two weeks after FBI agent Colleen Rowley’s explosive disclosure of the FBI’s failure to follow evidence that might have foiled the 9/11 attacks. Following that arrest, the “dirty bomb” allegation faded away, due to lack of evidence.
Just two categories of evidence were presented against Padilla by the prosecution: a “mujahideen data form” with Padilla’s fingerprints, and wiretapped phone calls.
Concerning the “application form,” it is noteworthy that there is no chain of custody linking that form with it’s alleged “discovery” among a truckload of documents hauled out of Afghanistan. That form could have been handed to Padilla at any time during his three and a half years in custody. Also, strange to say, those fingerprints are found only on two of the five pages. There is no evidence that Padilla ever attended the “training camp” to which he had allegedly applied.
Regarding the wiretaps, Lewis Z. Koch reports,
The prosecution has in its possession 300,000 wire taped conversations involving Padilla’s two alleged co-conspirators Adham Hassoun and Kifak Jayyousi, of which 230 were the core of its case. Only 21 of these 300,000 make reference to Padilla. Of these the government produced 7, count ‘em 7, phone calls with Padilla’s voice and not one making a reference to the charges he was indicted on “murder, or kidnaping or maiming.”
In the final paragraph of the aforementioned New York Times editorial, we are assured that “a would-be terrorist will be going to jail.” “Would-be?”
At best, the prosecution proved that Padilla “intended” to receive al Qaeda training, and “intended” to “murder, kidnap and maim.” There was not a scrap of evidence that he acted on any of these intentions. And so, simply stated, Padilla was convicted of “thought-crime” and “pre-crime” (as depicted in the 2002 movie, “Minority Report”).
(For still more condemnation of the Padilla trial and verdict, see Paul Craig Roberts’ “Padilla Jury Opens Pandora’s Box," Lewis Z. Koch’s running commentaries on the trial, and the comments that followed the Common Dreams of the New York Times editorial).
Was Padilla guilty as charged? Frankly, I don’t know. I did not attend the trial and did not hear the evidence and arguments. But of this much, I am confident: that evidence and those arguments did not rise to the level of “beyond reasonable doubt.” And in our legal system – at least, that system pre-Bush – failure to achieve that degree of certitude calls for a verdict of not guilty.
Furthermore, Padilla’s treatment prior to his trial, was of itself grounds for a directed acquittal from the bench. Nonetheless, not only did the defense’s motion for acquittal fail, the circumstances of Padilla’s three and a half year incarceration in a Naval Brig were ruled inadmissible at the trial. The jury heard nothing about it.
Incarceration and the “Goddam piece of paper.”
The treatment of Jose Padilla, an American citizen, following his initial arrest in June, 2002, was totally alien to the American legal system. It was more in tune with Nazi and Soviet practice – with the treatment of Winston Smith in George Orwell’s 1984, and of Rubashov in Arthur Koestler’s Darkness at Noon.
Fred Grimm of The Miami Herald, thus described Padilla’s confinement:
[He} was held in extreme isolation for 1,307 days. Held in a nine-by-seven-foot cell. The only window blacked out. He was the lone prisoner on the two-tier cellblock. He was given food through a slot in the door. He slept on a steel mattress. No reading material. No calendar. No clock. Nothing to connect him to the outside world…
Psychiatrist Dr. Angela Hegarty, who interviewed Padilla for twenty-two hours, adds to this description:
In this very small cell, he was monitored twenty-four hours a day, and the doors were managed electronically….He had no way of knowing the time. The light was always artificial. The windows were blackened.. He really didn’t see people, especially in the beginning. He only had contact with his interrogators.
In addition, no radio, no television, no telephone, no visitors, and for almost two years, no lawyer.
All this, mind you, was done to a prisoner who was not formally charged with a crime and thus, according to our system of jurisprudence, presumed to be innocent.
Consequently, Dr. Hegarty reports, when his family was at long last allowed to see Padilla,
[they] said he was changed. There was something wrong. There was something very "weird" — was the word one of his siblings used — something weird about him. There was something not right. He was a different man. And the second thing was his absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like — perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened..
Also … he had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I've seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were "unfair to the commander-in-chief," quote/unquote. And in fact, one of the things that happened that disturbed me particularly was when he saw his mother. He wanted her to contact President Bush to help him, help him out of his dilemma. He expected that the government might help him, if he was "good," quote/unquote.
Dr. Hegarty’s account vividly brings to mind the closing lines of Orwell’s 1984, as the broken and condemned Winston Smith reflects:
O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.
Dr. Hegarty concludes: “… as a clinician, I have worked with torture victims and, of course, abuse victims for a few decades now, actually. I think, from a clinical point of view, he was tortured… What happened at the brig was essentially the destruction of a human being's mind. That's what happened at the brig. His personality was deconstructed and reformed.”
Before me is a copy of the Constitution of the United States, a document that George Bush took an oath to “protect and defend,” and about which the same George Bush reportedly described as “a Goddam piece of paper.”
In that Constitution, the supreme law of the United States of America, I find the following guarantees to all citizens, including Jose Padilla (and to all “persons,” for that matter):
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. (Article One, Section Nine).
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. (Bill of Rights, Article Five)
…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. (Bill of Rights, Article Five).
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. (Bill of Rights, Article Six)
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. (Bill of Rights, Article Seven).
Excessive bail shall not lie required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (Bill of Rights, Article Eight).
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Fourteenth Amendment).
All these unequivocal guarantees to all citizens, stipulated by the Constitution, the supreme law of the United States, were violated in the case of Jose Padilla vs. the United States.
In ordinary criminal cases, massive prosecutorial bungling of a defendant’s Constitutional rights is grounds for directed dismissal of charges.
But not in the case of Jose Padilla vs. the United States. This was a case that the Bush administration simply could not afford to lose. From the time of his arrest in June, 2002, Padilla was the trophy prisoner, the “designated villain.” As that arrest was a political act, so too must be his incarceration and eventual conviction. It was simply not allowable that the Constitution, that “Goddam piece of paper,” interfere with this political theater.
But the Busheviks are not yet home free. The Padilla case now goes to the appellate courts. Even so, if the conviction is overturned on appeal, there follows the Supreme Court. Given the recent rulings of that Court, in particular Bush v. Gore in December, 2000, the outcome there is uncertain, and portentous. For if the Supremes forsake the Constitution in the Padilla case, what protections remain for the rest of us?
Jose Padilla and you.
Step by step, through acts of Congress and unchallenged executive orders, we Americans have been transformed from free citizens of a democratic republic to subjects of an arbitrary dictatorship. Whereas we were once protected by our Constitution and the rule of law, we now remain “at liberty” at the whim of the government.
A majority of Americans might say, with some justification, “I am not a terrorist, I have not openly complained against the government, so I have nothing to fear.”
Unfortunately for those of us who protest, who publish, speak and demonstrate against the Bushevik regime, the imprisonment and subsequent trial of Jose Padilla gives us abundant reason to be fearful. Nor is the Padilla case exceptional, as indicated by the treatment of US citizens John Walker Lindh, Yassir Hamdi, Muslem Chaplain James Yee, along with hundreds of uncharged and unrepresented “detainees” at Guantánamo and elsewhere. The Bill of Rights explicitly apply, not to “citizens,” but to “persons.”
The peril to all opponents to the Bush regime follows directly from Bush’s pronouncement to Congress on September 20, 2001: “either you are with us or you are with the terrorists.” From the logical rule of “disjunctive syllogism,” the conclusion follows: “if you are not with “us” (presumably the Bush regime), then you are with the terrorists.” Put more bluntly: dissent is treason. The option of “loyal opposition” – opposition to both official government policy and to terrorist – is rejected by Presidential fiat.
Who is at risk? That's hard to say, but it's clear that it won't just be hardened terrorist types. A presidential executive order signed by Bush on July 17 declares that anything "undermining efforts to promote economic reconstruction (sic) and political reform (sic) in Iraq" could be deemed a crime making the perpetrator subject to arrest. Would writing essays critical of the president, the war in Iraq, or the "reconstruction" effort in Iraq meet that standard? Who knows? Would being interviewed for commentary as part of a news story on English-language Al Jezeera TV? … And how about anti-war protesters?
The Constitution stipulates the right of all citizens to engage in such dissenting activities. But as we have seen, the Bush regime, with the collaboration of Congress, has set aside the Constitution — “a Goddam piece of paper,” the President calls it. And to date, the Democratic Congress has failed to restore the right of habeas corpus or any other citizen rights cancelled by the Republican administration and Congress.
The Military Commissions Act of September, 2006, gives the President, through his appointed “Combat Status Review Tribunals,” the power to identify almost anyone an “illegal enemy combatant” virtually at his own say-so. To be sure, there are restrictions in the Act, but they are so vague and ambiguous as to be meaningless and unenforceable.
We have handed a blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens "unlawful enemy combatants" and ship them somewhere – anywhere – but may now, if he so decides, declare you an "unlawful enemy combatant" and ship you somewhere – anywhere…
And if you somehow think habeas corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an "unlawful enemy combatant" – exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this attorney general is going to help you? (For a concurring opinion, see The New York Times editorial of September 28, 2006).
So it comes to this: those of us who openly oppose the policies of the Bush administration, are free today at the whim of the Bush administration — simply because the Busheviks choose not to seize all our assets (cf. Executive Order, July 17, 2007) or to round us up and “preventively detain” us.
To be sure, Bush’s newly-acquired dictatorial powers are not total. He dare not “disappear” Congressional dissenters such as Russ Feingold or Dennis Kucinich, or media critics such as Keith Olbermann. Not yet. Such overt acts could, at last, mobilize Congressional and media opposition sufficiently to put an end to the this incipient dictatorship. But these are practical limitations. As the Padilla case has vividly demonstrated, legal constraints have been effectively abolished.
If such “practical limitations” are all that we have left, then let us use them to fullest advantage. Bush/Cheney, Inc., might be able to silence and incarcerate dozens of insignificant wretches such as Padilla, Lindh, Yee, etc. Perhaps even hundreds or thousands. But not yet members of Congress or media critics, or prominent dissenters such as Al Gore and ex-Presidents Carter and Clinton. Least of all the organized and massed protests of millions of ordinary citizens.
While the door to a restoration of our liberties still remains unlocked, we must push it open and rush through it. Waiting for others to effect our rescue and hoping for the best, will only permit the oppressors to lock that door.
Pastor Martin Niemoller’s warning is as valid today as ever:
In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.
Copyright 2007 by Ernest Partridge
Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" and co-edits the progressive website, "The Crisis Papers".