The Real Verdict on Jose Padilla

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/16/AR2007081601771.html?hpid=opinionsbox2

By Jenny S. Martinez

Friday, August 17, 2007; Page A23

The Washington Post

The conclusion of Jose Padilla's criminal trial in a federal court yesterday shows that waging the "war on terror" does not require giving up our constitutional values or substituting military rule for the rule of law. The jury's guilty verdict should be appealed, but the verdict on the Constitution is in: We should keep it.

Padilla is a U.S. citizen who was arrested in Chicago in May 2002, pursuant to a warrant to testify before a grand jury. He was held in civilian custody in New York for a month, but on the eve of a hearing in federal court, President Bush declared Padilla an "enemy combatant." At that point, Padilla was whisked out of the civilian justice system and imprisoned in a South Carolina military brig. Then-Attorney General John Ashcroft held a news conference to announce that the government had thwarted a plot by Padilla to set off a radiological "dirty bomb" in an American city.

Anyone who has seen a cop show in recent decades knows what rights people in America usually have when arrested: the right to remain silent and the right to an attorney. Not Padilla.

For nearly two years, Jose Padilla was denied all access to his lawyers, his family and the court system. The Bush administration claimed that he could be held without trial until the end of its "war on terror." Allowing Padilla to talk to a lawyer or know that a court was considering his case, the government argued, would threaten national security. Meanwhile, the government was working to create a relationship of complete "dependency" between Padilla and his interrogators, who were busy trying to torture a confession out of him.

As court filings indicate, Padilla was allegedly subjected to sleep deprivation, stress positions and extreme temperatures. Worse, he was held without human contact, without a clock or even natural light -- with no way to know how quickly or slowly time was passing. When he was removed from his cell to visit a dentist, goggles and earmuffs were placed on him. Psychologists have long reported that extreme sensory deprivation is one of the quickest ways to drive people mad -- and make them willing to confess to anything.

The case challenging the constitutionality of Padilla's detention was in the federal courts for several years. It reached the Supreme Court in 2004, at which point the government finally allowed him to speak to a lawyer. But the high court did not review the merits; instead, it ruled on a technicality that the case should have been brought in South Carolina, not New York. Litigation continued and nearly reached the Supreme Court again in late 2005. By then, the administration had begun soft-pedaling the "dirty bomb" story, which it described as "loose talk" rather than an imminent plot. It put forward a new theory: Padilla was planning to blow up apartment buildings with natural gas. The government also argued that he could be detained as an "enemy combatant" because, it alleged, he had been in Afghanistan during the U.S. bombing campaign in late 2001.

Two business days before the government's brief was due in the Supreme Court, the administration switched tactics again. Fearful that the court would rule that a U.S. citizen arrested in the United States could not constitutionally be detained forever without criminal trial, the government announced that Padilla would be tried in a federal court in Miami. As the U.S. Court of Appeals for the 4th Circuit noted, the government's actions made it appear that it was trying to evade Supreme Court review.

The charges brought in Miami contained none of the allegations about the dirty-bomb plot, the apartment buildings or even Padilla's presence in Afghanistan in late 2001. Instead, the government alleged that Padilla had conspired in the 1990s to provide support to overseas jihadists in Bosnia and Chechnya. Commentators called even this weaker case notably thin, but Padilla was found guilty.

Padilla's fate, pending appeal, remains unknown. Also unknown is whether the courts will ever definitively rule on the legality of the government's mistreatment of Padilla during his four years of military detention. But some things are certain:

The trial showed that our federal courts are perfectly capable of dealing with terrorism cases. A federal judge presided over the five-month trial of Padilla and his co-defendants with great care for both the rights of the defendants and for national security. The Bush administration has claimed since Sept. 11 that the federal courts cannot be trusted with terrorism matters. It has argued that we should scrap our centuries-old constitutional protections and replace our system of checks and balances with one awarding the executive complete discretion to lock up whomever he wants, for however long he deems appropriate. The Founders rejected that kind of arbitrary and oppressive power. And the federal court in Florida has shown how weak the administration's case for abandoning the Constitution really is.

The writer, a law professor at Stanford University, represented Jose Padilla before the Supreme Court in 2004 and is his attorney in a civil case regarding his treatment while detained.