Jose Padilla: No Charges and No Trial, Just Jail


Richard Moore


ugust 21, 2003 

Jose Padilla: No Charges and No Trial, Just Jail 

by Robert A. Levy 

Robert A. Levy is senior fellow in constitutional studies
at the Cato Institute.

Jose Padilla is the U.S. citizen who supposedly plotted to
detonate a "dirty bomb." Since his capture -- not on the
battlefields of Afghanistan or Iraq, but at Chicago's
O'Hare Airport -- he has not been charged with any crime.
Yet, for more than a year, Padilla has been held
incommunicado in a South Carolina military brig.

Padilla's indefinite detention, without access to an
attorney, has civil libertarians up in arms. That's why
the Cato Institute, joined by five ideologically diverse
public policy organizations -- the Center for National
Security Studies, the Constitution Project, the Lawyers
Committee for Human Rights, People for the American Way,
and the Rutherford Institute -- filed a
friend-of-the-court brief in Padilla v. Rumsfeld, now
pending before the U.S. Court of Appeals for the Second
Circuit in New York.

Consider this specious logic, endorsed by the Bush
administration: Under the Sixth Amendment, the right to
counsel does not apply until charges are filed. The
government has not charged Padilla. Ordinarily, U.S.
citizens cannot be detained without charge. But the
administration has avoided that technicality by
designating Padilla as an "enemy combatant," then
proclaiming that the court may not second-guess his

Essentially, on orders of the executive branch, anyone
could wind up imprisoned by the military with no way to
assert his innocence. That frightening prospect was echoed
by J. Harvie Wilkinson, the respected and steadfastly
conservative chief judge of the Fourth Circuit. In a case
involving another U.S. citizen, Yaser Hamdi, Wilkinson
warned, "With no meaningful judicial review, any American
citizen alleged to be an enemy combatant could be detained
indefinitely without charges or counsel." Judge Wilkinson
upheld Hamdi's detention but pointedly noted that Hamdi's
battlefield capture was like "apples and oranges" compared
to Padilla's arrest in Chicago. "We aren't placing our
imprimatur upon a new day of executive detentions,"
Wilkinson cautioned.

An unambiguous federal statute and the U.S. Constitution
both prohibit the executive branch from doing to Padilla
what it is now doing. More than three decades ago,
Congress passed Title 18, section 4001(a) of the U.S.
Code. It states, "No citizen shall be imprisoned or
otherwise detained by the United States except pursuant to
an Act of Congress." Today, we have not had from Congress
any statute that authorizes Padilla's detention.

Yes, Congress enacted the PATRIOT Act, which says that
non-citizens suspected of terrorism can be detained, but
only for seven days. After that, they have to be released
or charged, unless the attorney general certifies every
six months that they present a security risk. Two months
earlier, Congress had passed a resolution empowering the
president to use all necessary force against the 9/11
terrorists. But that resolution surely did not give the
administration unfettered discretion to detain citizens
without charge. If it had, then the ensuing PATRIOT Act
would have afforded more protection to aliens than to
citizens. In the wake of the 9/11 attacks, that
proposition is incredible.

Reasonably construed, Congress' resolution on the use of
military force triggered the president's
commander-in-chief authority. He could then order seizure
of enemy soldiers and detention of persons found in a zone
of active combat. But he could not order the imprisonment,
without charge, of an unarmed non-soldier far from active
combat, especially a U.S. citizen on our own soil.

Nor is the administration justified in its reliance on Ex
parte Quirin, the Supreme Court case involving eight Nazi
saboteurs, one of whom was an American citizen. The
executive branch acted in Quirin in accordance with
congressional authorization. The eight Nazis were
represented by counsel, charged, tried, and convicted.
Here, by contrast, Padilla has been denied any chance to
defend himself. He has seen no lawyer; he has not been
charged, much less tried and convicted. And he has been
imprisoned notwithstanding a 30-year-old statute that
expressly forbids the unauthorized detention of U.S.

Padilla may deserve the treatment he is receiving --
perhaps worse. That is not the point. When Americans are
taken into custody, they have the right to retain an
attorney. Congress must first set the rules. Then an
impartial judge, not the president, should make the
ultimate decision as to whether the arrest and
imprisonment comport with the Constitution. James Madison,
in Federalist No. 47, put it succinctly: "The accumulation
of all powers, legislative, executive, and judiciary, in
the same hands ... may justly be pronounced the very
definition of tyranny."

This article was published in the Chicago Sun-times, Aug.
11, 2003. 


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