Justice Delayed - Justice Denied
Jose Padilla's Yale-based lawyer says his client just wants to be indicted.
by Joel Whitney 08/11/05 "NHA" --
-- Late last month, the case of so-called "dirty bomber" Jose Padilla made a blip in the news when the U.S. Department of Justice appealed a lower court's decision that Padilla had to be either tried or released. In order to maintain the president's right to keep Padilla locked up forever, the solicitor general was prompted to call the whole of U.S. territory a "battleground" in our perpetual war on terror, implying that anyone could be jailed and blocked from mounting a defense, as Padilla has been.
No one denies Padilla's checkered past, not even his defense team, which includes Yale-based lawyer Jonathan Frieman. A former gang member with friends in the worst places, Padilla was arrested in Chicago in May 2002 after flying into O'Hare. Initially he was held in New York for questioning, but a month later the president ordered Padilla turned over to military personnel. Using the neocon neologism "enemy combatant," the government claims it can deny Padilla a trial--whether he was picked up on a literal battlefield in Afghanistan or on a figurative battlefield, yet to see fighting.
A test case for a new kind of preemption--preemptive conviction--Padilla has been held in solitary confinement for three years, only allowed to see his lawyers two years into his confinement. Even then it was treated not as his inalienable right but as a "discretionary measure" (read: government gift). It's difficult to muster sympathy for someone with a resume that reads "trained by Al Qaeda" and "conspired to explode radioactive material." But keep in mind that, even if the government is telling the truth about Padilla's putative crime, this case isn't about Jose Padilla alone. It's about a process that has remained intact through American catastrophes like the Civil War and the cold war. Indeed, when one of Padilla's lawyers, Andrew Patel, said before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, "I may be the first lawyer to stand here and say I'm asking for my client to be indicted by a federal grand jury," what he signaled was that the executive government needs to try in court even those it deems guilty of the most heinous crimes, or else we and generations to come will be stuck with the consequences.
To get a sense of the gravity of the case, and of the precedent it could set as it works its way to the Supreme Court, I called Frieman, one of Padilla's lawyers and a senior fellow at Yale Law School. Frieman called Padilla's case a "landmark," underscoring that "no president has ever been granted the power to detain indefinitely an American citizen seized in a civilian setting on American soil." While the Bush administration insists 9/11 "changed everything" and that the authors of the Constitution could never have imagined planes flying into buildings, black-market nukes or homemade bombs, Frieman dismisses this line of reasoning. "Not long after the drafting of the Constitution," he says, "Britain sacked Washington and burned the White House to the ground. It was in this very context of danger... that they limited the power of government." History lessons aside, certainly some rights are negotiable during emergencies? "Some rights can be waived," Frieman says. "But a waiver has to be knowing and voluntary. There are no constitutional rights that the government can waive for you."
Surely there is some justification for the president's actions? National security? Top-secret information? Asked if he would make the case for the administration, Frieman said he'd rather not, explaining, "They've a competent legal team." Frieman answered indirectly but firmly when asked about Padilla's demeanor during his only visit with lawyers: "Imagine spending three years completely alone, your meals slid into your cell, your captors the only people you ever see. And the whole time you're being told that this can go on forever, you may never leave." Frieman got patriotic when asked about defending Public Enemy Number 3 or 4. Admitting to having received hate mail and threats, he asked, "Why subject oneself to that? Because of what's at stake here. The government argues...that the time has come to go back to the old model of the British kings, where the military can seize citizens in their homes and city parks and hurry them away to secret prisons where they're held incommunicado and without charge.
"We argue that the framers rejected that model," he continued, "that our Constitution took us on a different path, a path of democracy and freedom that only we, the people, have the power to change. I'm happy to defend that vision, not just for me and my generation but for my children as well."
With a decision expected in the coming weeks, it's not too late for the court to get this one right, upholding that Padilla be tried, as his counsel has requested. He may just turn out to be guilty.
joelpwhitney@gmail.com
Jose Padillas Yale-based lawyer says his client just wants to be indicted. Copyright © 1995-2005 New Mass Media
by Joel Whitney 08/11/05 "NHA" --
-- Late last month, the case of so-called "dirty bomber" Jose Padilla made a blip in the news when the U.S. Department of Justice appealed a lower court's decision that Padilla had to be either tried or released. In order to maintain the president's right to keep Padilla locked up forever, the solicitor general was prompted to call the whole of U.S. territory a "battleground" in our perpetual war on terror, implying that anyone could be jailed and blocked from mounting a defense, as Padilla has been.
No one denies Padilla's checkered past, not even his defense team, which includes Yale-based lawyer Jonathan Frieman. A former gang member with friends in the worst places, Padilla was arrested in Chicago in May 2002 after flying into O'Hare. Initially he was held in New York for questioning, but a month later the president ordered Padilla turned over to military personnel. Using the neocon neologism "enemy combatant," the government claims it can deny Padilla a trial--whether he was picked up on a literal battlefield in Afghanistan or on a figurative battlefield, yet to see fighting.
A test case for a new kind of preemption--preemptive conviction--Padilla has been held in solitary confinement for three years, only allowed to see his lawyers two years into his confinement. Even then it was treated not as his inalienable right but as a "discretionary measure" (read: government gift). It's difficult to muster sympathy for someone with a resume that reads "trained by Al Qaeda" and "conspired to explode radioactive material." But keep in mind that, even if the government is telling the truth about Padilla's putative crime, this case isn't about Jose Padilla alone. It's about a process that has remained intact through American catastrophes like the Civil War and the cold war. Indeed, when one of Padilla's lawyers, Andrew Patel, said before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, "I may be the first lawyer to stand here and say I'm asking for my client to be indicted by a federal grand jury," what he signaled was that the executive government needs to try in court even those it deems guilty of the most heinous crimes, or else we and generations to come will be stuck with the consequences.
To get a sense of the gravity of the case, and of the precedent it could set as it works its way to the Supreme Court, I called Frieman, one of Padilla's lawyers and a senior fellow at Yale Law School. Frieman called Padilla's case a "landmark," underscoring that "no president has ever been granted the power to detain indefinitely an American citizen seized in a civilian setting on American soil." While the Bush administration insists 9/11 "changed everything" and that the authors of the Constitution could never have imagined planes flying into buildings, black-market nukes or homemade bombs, Frieman dismisses this line of reasoning. "Not long after the drafting of the Constitution," he says, "Britain sacked Washington and burned the White House to the ground. It was in this very context of danger... that they limited the power of government." History lessons aside, certainly some rights are negotiable during emergencies? "Some rights can be waived," Frieman says. "But a waiver has to be knowing and voluntary. There are no constitutional rights that the government can waive for you."
Surely there is some justification for the president's actions? National security? Top-secret information? Asked if he would make the case for the administration, Frieman said he'd rather not, explaining, "They've a competent legal team." Frieman answered indirectly but firmly when asked about Padilla's demeanor during his only visit with lawyers: "Imagine spending three years completely alone, your meals slid into your cell, your captors the only people you ever see. And the whole time you're being told that this can go on forever, you may never leave." Frieman got patriotic when asked about defending Public Enemy Number 3 or 4. Admitting to having received hate mail and threats, he asked, "Why subject oneself to that? Because of what's at stake here. The government argues...that the time has come to go back to the old model of the British kings, where the military can seize citizens in their homes and city parks and hurry them away to secret prisons where they're held incommunicado and without charge.
"We argue that the framers rejected that model," he continued, "that our Constitution took us on a different path, a path of democracy and freedom that only we, the people, have the power to change. I'm happy to defend that vision, not just for me and my generation but for my children as well."
With a decision expected in the coming weeks, it's not too late for the court to get this one right, upholding that Padilla be tried, as his counsel has requested. He may just turn out to be guilty.
joelpwhitney@gmail.com
Jose Padillas Yale-based lawyer says his client just wants to be indicted. Copyright © 1995-2005 New Mass Media
posted by A. J. Franklin @ 21:13
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