Padilla, Civil Liberties, and the Left

Jose Padilla, a convicted felon and former Chicago gangbanger, was arrested in May of 2002 at Chicago's O'Hare Airport. Padilla had been under surveillance for months, since he'd arrived at the U.S. Consulate in Pakistan asking for a replacement passport.

The State Department obliged but, intrigued, asked other agencies to investigate why a man named Padilla was hanging around in Karachi. Padilla (who also called himself 'Abdullah Al Muhajir') was then tracked by U.S. intelligence flying between Pakistan, Egypt and Switzerland. They also found that Padilla had met with senior al Qaeda leaders in Afghanistan and Pakistan. There, he'd trained with the enemy studying such advanced topics as wiring of explosive devices and researching dispersion of radiological material.

U.S. officials added that Padilla's planned acts of sabotage were independently described by Abu Zubaydah, the most senior al Qaeda figure captured by U.S. authorities.

Padilla could be held indefinitely as an enemy combatant without being charged until the U.S.-declared war against terrorism ends, according to John McGinnis, professor of constitutional law at Northwestern Law School in Chicago. As the Bush Administration has argued, enemy combatants, even if U.S. citizens, are no more subject to criminal law than were Wehrmacht troops on the beaches of Normandy on D-Day.

The history of 'enemy combatant' status lies in the tale of seven Nazi agents who came ashore in 1942. Their mission was simple: sabotage armament factories and railroads to the detriment of the American war effort. One soldier, a man named Haupt, was also a U.S. citizen.

The Nazis were quickly captured. President Roosevelt ordered them tried by military commission, but the detainees filed a petition of habeus corpus   to challenge their military detention using the Fifth and Sixth Amendments. Could the President arrest, detain, try and even execute such persons in the U.S. without involving the judiciary?

Unanimously, the Supreme Court ruled that indeed he could*:

...an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals...

In other words, saboteurs without uniforms were "enemy combatants" and therefore subject to military jurisdiction. Even Haupt, the U.S. citizen, could be so held. The Supreme Court noted:

...Citizens who... enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war...

Despite the positions you've heard from pundits and TV's "judicial experts", the status of enemy combatant is not new. The U.S. Supreme Court has clearly delineated where combatant status begins and civilian law ends.

"If someone is a soldier, he is under the rules of war and needs to be treated as such," McGinnis adds. But "He [Padilla] is not necessarily a prisoner of war. He's an undeclared combatant, a saboteur ... aiming at civilian targets, and outside the protection of the Geneva Convention."

U.S. officials supplied evidence showing Padilla planned to harm U.S. interests and thereby transfered Padilla's case from the civilian to the military justice system. After receiving information from intelligence sources and recommendations from the Attorney General and Secretary of Defense, President Bush signed off on the decision to treat Padilla as an enemy combatant.

Hardly a system rife for abuse, the Padilla case has both legal and historical precedent leading all the way to the Supreme Court.

New Sisyphus: The U.K. and the U.S.: Civil Liberties in the Age of Terror

* Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 51, 87 L.Ed. 7 (1942)