Posted on 23-9-2003

Bush's Legal Black Hole
by Nat Hentoff, The Village Voice, 19 September 2003. Photo shows Jose Padilla

    Ignored by most media, an array of prominent federal judges, government officials, and other members of the legal establishment has joined in a historic rebellion against George W. Bush's unprecedented and unconstitutional arrogance of power that threatens the fundamental right of American citizens to have access to their lawyers before disappearing indefinitely into military custody without charges, without seeing an attorney or anyone except their guards.

    The case, Padilla v. Rumsfeld, is now before the Second Circuit Court of Appeals. In a compelling friend-of-the-court brief on Padilla's behalf by an extraordinary gathering of the aforementioned former federal court judges, district court judges, and other legal luminaries of the establishment bar, they charge:

    "This case involves an unprecedented detention by the United States of an American citizen, seized on American soil, and held incommunicado for more than a year without any charge being filed against him, without any access to counsel, and without any right to challenge the basis of his detention before a United States judge or magistrate . . .

    "[We] believe the Executive's position in this case threatens the basic 'rule of law' on which our country is founded, the role of the federal judiciary and the separations in our national government, and fundamental individual liberties enshrined in our Constitution."

    On May 8, 2002, Jose Padilla, unarmed and showing valid identification, was arrested at Chicago's O'Hare Airport by the FBI while getting off a plane. As his court-appointed lawyer, Donna Newman-who has shown herself to be truly a credit to the bar-told Judge Andrew Napolitano on the Fox News Channel:

    "What they allege is that he had some 'loose talk.' That's their words, not mine, that he was planning, not a plan exactly, just loose talk about detonating a dirty bomb. Not him personally because, of course, he had . . . not even a pamphlet about bomb making when he was seized in the United States."

    Padilla was not charged with a crime, or with planning a crime. He was held as a material witness in a high-security prison in Manhattan. But suddenly, without Padilla's lawyer being informed, Padilla was hauled away by the Defense Department to a military brig in North Carolina where, in solitary confinement, he remains.

    As Donna Newman says, "While the world knows about his case, he does not. They put somebody in a legal black hole."

    Padilla has been stripped of his rights-until now guaranteed by the Constitution-by the sole order and authority of George W. Bush, who has designated him an "enemy combatant."

    As the friend-of-the-court brief by the former federal judges and other prominent lawyers states:

    "There is at present no constitutionally-approved definition of who is an 'enemy combatant'; there are no constitutionally-approved procedures governing when and how persons seized in the United States may be imprisoned as 'enemy combatants' or for how long . . .

    "In the absence of such standards . . . the judiciary-and the historical 'great writ' of habeas corpus-serves as the sole safeguard against what otherwise would be an unbridled power of the Executive to imprison a citizen based solely on the Executive's hearsay assertions that he or she has become an 'enemy' of the state."

    Habeas corpus, embedded in the body of the Constitution, even before the Bill of Rights was added, provides a citizen held by the government with the right to go to a court and make the government prove he or she is being imprisoned legally.

    As Donna Newman, impeded from her right to represent her client meaningfully, says: "To have the government say to us, 'You have a right to bring a petition [for habeas corpus], [but] you just can't speak to your client.' [That] is absolutely absurd."

    And that is absolutely unconstitutional.

    In a number of previous Voice columns and in my newly available book, The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press), I have reported both on the series of radical abuses of the rule of law by Bush, Ashcroft, and Rumsfeld that have now reached a climax in this case, and on the case of another American citizen, Yaser Esam Hamdi, also being held without charges and without access to a lawyer in a military brig.

    While the rest of the media failed to vigorously ring the liberty bell on Padilla v. Rumsfeld, The New York Observer came through with Greg Sargent's front-page August 11 story, "Bush's Tactics in Terror Case Called Illegal." It focused on the brief by the former judges, government officials, and renowned lawyers alarmed by the president's bypassing of the Constitution. Quoted was Harold Tyler, a former federal judge, and deputy attorney general under President Gerald Ford, who brought him in to cleanse the Justice Department after Watergate:

    "They should charge this man if they've got something against him. And they should give him the right to counsel. These are all constitutional rights. . . . I have been a longtime Republican, but I'm a disenchanted Republican in this case."

    The amicus brief he and the other members of the establishment bar signed declares: "Throughout history totalitarian regimes have attempted to justify their acts by designating individuals as 'enemies of the state' who were unworthy of any legal rights or protections. These tactics are no less despicable, and perhaps even more so, when they occur in a country that purports to be governed by the rule of law." And George W. Bush regularly intones his allegiance to "the rule of law."