Thursday, August 16, 2007

Padilla's Wormhole

After less than two days of deliberation, Padilla and his co-defendants were convicted on all counts by a unanimous jury today. They will face sentencing in December. This conviction represents the first time Padilla’s case has been evaluated on the merits in his five years of confinement, and it’s difficult to know how much this verdict was tainted by his prior “enemy combatant” designation. As I and numerous others--such as our own Grace O'Malley just yesterday and Juliet Stumpf in her interesting work on pseudo-citizenship--have argued, his case presents a frightening example of the basic disregard of civil rights that has occurred far too frequently in the post-9-11 era. Despite O’Connor’s opinion in Hamdi acknowledging due process protections for U.S. citizens designated as enemy combatants, Padilla managed to come before the U.S. Supreme Court multiple times with no evaluation of whether his designation as such was appropriate. Moreover, this type of erosion of process and basic rights has occurred repeatedly in the United States and elsewhere when people are labeled as “enemies” or “others.”
Whether or not Padilla deserves his conviction on the merits, his case should serve as a reminder of why we need to fight for minimum protections of civil liberties and basic consistency in governmental treatment of terrorism suspects. As Judge Luttig, who originally wrote an opinion sympathetic to the Bush Administration, said in response to Padilla’s sudden redesignation from enemy combatant to criminal defendant:
For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake—an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror—an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

1 comment:

tekel said...

Of course, Michael Luttig's opposition to the Unitary Executive is nothing more than the spite of a (pardon the phrase) woman scorned. He thought he would get Strip-Search Sammy's seat, and when the nomination didn't work out like that, he had nobody's shoulder to cry on.

Boo Hoo, Luttig. If he had his appointment to the SCOTUS, you can bet that he'd support this misapplication of executive power 911%.