Paying a little attention to habeas corpus

By Juan Curiel
Napa

There is a basic, essential right found an age-old document called the Magna Carta that is fundamental to our system of justice in the United States.

It is embedded in our U.S. Constitution and is one of the jewels in the crown of our democracy: The writ of habeas corpus.

Between clauses 36 and 40, the Great Charter speaks of things like producing evidence, never delaying the course of justice, and that no one should be imprisoned “save by the lawful judgment of his peers or by the law of the land.”

Bearing that in mind, it’s a pity that more of us haven’t been paying attention.

Jose Padilla, the now infamous “dirty bomb” suspect, recently was sentenced to 17 years in federal prison. Not for charges of terrorism, but on an unrelated terrorist support charge. That’s before factoring in time already served and good behavior: a decision that came as a surprise for many, myself included.

What makes this case so unique is his designation as an “enemy combatant” at the behest of the Bush administration. This classification precluded Padilla from what most of us would consider the right of due process: Indefinite detainment without being charged, denial of legal representation and the inability to contradict evidence presented against him.

How did this happen? And perhaps the more pressing question, why?

To understand this, one has to view it through the lens of post-9/11 justice. After the USA Patriot Act was introduced, our government was given a much broader context with which to determine and prevent terrorist threats. Some have called it a necessary tool to ensure our continued safety, others have decried it as the death rattle of a free and democratic society.

In any case, here are the facts: Padilla was initially arrested on a material witness warrant. It seemed obvious that the federal government was in the process of building a case against Mr. Padilla, but because there were time constraints on how long they could hold him without charges, and because there were concerns that methods of gathering intelligence could be compromised by the conventions of a standard criminal trial, the subpoena was revoked and his combatant status was issued. After which Padilla was housed in a Navy brig, where his lawyers contend he was “tortured” (stress positions and enhanced interrogation techniques) and coerced into various confessions and admissions, all without legal counsel present. Hardly acceptable, but under the circumstances, few complained. (He was being charged as a possible al-Qaeda operative.)

Here’s the problem: The government failed in its attempt to present evidence, not only of Padilla’s involvement in a terrorist plot, but that there ever was a plot to begin with.

I’m not the only one worried about this. Way back in 2004, Nat Hentoff railed in an op-ed piece for the Washington Post about the case, calling it a “Hail Mary” attempt at an early touchdown for the Bush administration on the war on terror. His concern about the case setting a dangerous precedent that future commanders-in-chief would follow is a legitimate one. However, Hentoff is usually characterized as someone left of center. If one were looking for a more impartial take, you might want to hear, say, a Bush appointee for attorney general weigh-in on this.

In point of fact, Michael Mukasey, who was the presiding judge for the Padilla case in its early stages, made a break with the Bush administration and called on the Department of Justice to allow Padilla to meet with his lawyers, a ruling the DOJ initially regarded as a suggestion, and ignored. Although he ultimately relented on the issue of executive authority to detain without charges (a ruling eventually overturned by the Second Circuit Court of Appeals), Mukasey, in clear and concise terms championed the right of due process over the whim of the executive branch at a time when most deferred to it.

Jose Padilla is no saint, and hardly a civil liberties martyr, but when all is said and done, he wasn’t a terrorist either and perhaps most importantly, he was a legal U.S. citizen, who was treated as anything but.

In a time when politicians wear the word “change” like a fashion statement, I’d like to remind us all of some things which should never change, like due process, habeas corpus and our right to a fair and speedy trial.

If this case serves any purpose, hopefully, it will get us all to start paying a little more attention.

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