Jan/Feb 2006 Nonfiction

Framing Padilla

by Robert Link

The constitution should not be stood on its head to shake the loose change of convenient prosecution out of its pockets.
           --Francis Till, Web Editor, National Business Review

The case for detaining Jose Padilla in a military prison for over three years without benefit of due process allegedly rests on the Authorization for Use of Military Force Joint Resolution (AUMF), which reads:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (emphasis added)

If the above sentence is constitutionally valid, and if it is constitutionally valid to be at war with a non-nation/state entity, then Padilla is lawfully detained. It would seem this section of the AUMF violates constitutional principles of separation of powers, but to clarify the matter we will need to consider a variety of matters, including the due process right of habeas corpus and the way thoughts opinions and actions can be manipulated by the skillful framing of matters.

At its simplest, due process is the embodiment of notions of universal fairness which must never be violated. In the United States an example of such a rule is "innocent until proven guilty." Not all nations or cultures have subscribed to this rule but the United States has since its inception considered innocent until proven guilty to be a social artifact to be held eternally inviolate by the government and people of the United States. Innocent until proven guilty is a concept even young school children know and understand. Other matters are neither so simple, clearly defined or even clearly definable, nor widely considered outside the legal profession. One such aspect of due process, at stake in Padilla's case, is habeas corpus, which is an ancient right that comes to us from English common law, and which assures no one shall be imprisoned without being properly charged with a crime. Part of the reason the Bush administration has thus far got away with depriving Padilla of this right is exactly that it is not an easily recited catch-phrase like innocent until proven guilty and that it comes not from an enactment of Congress but from the ancient common law on which all our legal system rests.

There can be no self-honest shrinking away from the clear fact that Jose Padilla, a United States citizen taken into custody while on United States soil, has been denied his due process rights of habeas corpus. The recent Supreme Court decision regarding his case was about precisely that issue, ruling that in this case it was constitutionally allowed to so deprive him, under the AUMF quoted above. But is the AUMF itself constitutional? Section 9, Clause 2 of the United States Constitution reads:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This is the clause that makes it relevant to question framing pursuit of the international criminals who carried out the September 11, 2001 attacks as a "war". If we are at war with those people, then their attacks can be deemed an invasion, and we can then invoke Section 9, Clause 2, as we have in a round-and-about fashion with Padilla. But can we justify viewing our pursuit of the September 11, 2001 attackers as a war? And what exactly is meant by "framing"?

"If all you have is a hammer everything looks like a nail," goes the old saying. This is a folk-wisdom way of saying that how you frame an issue will affect your handling of that issue, will affect the solutions you find and even strongly limit the range of solutions you consider. With respect to the international criminals responsible for the hijackings and attacks of September 11, 2001 our government has relied on the rhetoric of warfare--and having firmly grasped that hammer proceeds to treat all related problems like nails. But is war really what's going on here? There exists no convincing argument that it is legal, reasonable or even sane to consider war to be applicable to non-nation/state entities. The rational and reasonable grounds for fighting al Qaeda as a collective and it's members as individuals is through a) conspiracy and other extant domestic law where the issue is with a citizen of the United States, b) where the persons in question are not U.S. nationals, international diplomacy and assisting other nations with enforcement of their laws by which conspiring to kill innocents is universally prohibited.

One needn't take refuge in conspiracy theory to explain why the administration would turn to a logically absurd, legally unsupportable war on al Qaeda, in specific, or capital-T-terror in general; the sad truth is such rhetoric works. War-speak is emotionally gratifying, especially for people who are afraid and confused, the rhetoric of strength of arms is reassuring. Those who speculate as to other reasons for the administration's quickness to resort to such an obviously inappropriate way of thinking about and pursuing the criminals behind the September 11, 2001 attacks may well be right, but more to the point is that simple answers that can easily be reduced to sloganeering will always be powerful political tools. Given that the current administration, as well as the majority of representatives in both the House and the Senate, subscribe to a "We are the world's policeman" ideology most articulately presented by the Plan for the New American Century (PNAC), and likewise given that so many of our elected representatives, and so too, presumably, our fellow countrymen, fail to see the evil and dangers of taking such a position, it is no surprise that few have the will to question the basic assumption. To phrase that assumption explicitly, so we can analyze it and answer it rationally, let us ask: Are there legal, reasonable, sane grounds on which to define as "war" our effort to bring to justice the architects of the September 11, 2001 destruction of the World Trade Center?

The legal, reasonable, sane and moral answer is a clear and resounding, "No." It is a logical absurdity to declare "war" on a non-nation, non-state, and no amount of war-laden rhetoric on the part of a collection of international criminals justifies codifying such an absurdity into our statutes. The only reasonable, the only sane answer is for the Supreme Court to finally rule that no one, neither Congress nor the Senate nor the President, can rationally--or legally--declare war on a collection of international criminals.

By allowing such efforts to be couched in terms of war we have allowed an immoral and power drunk element of our society to take the steering wheel of our nation and to frame all dissent thereto as treasonous, and so we have each of us become complicit in the crimes of that immoral and power drunk element. The "war" in Afghanistan never offered any hope of permanently defeating a shadow organization such as al Qaeda. Likewise for the war in Iraq, even if we credit such a goal as the motivation behind our continued illegal military occupation of that country. On the contrary, such acts of arrogant belligerence can only fuel the fire, can only increase the perception in the eyes of people who might otherwise have shunned al Qaeda and their ilk that we are indeed the evil empire and that a blow struck against our citizens is a blow struck for justice. Legally it is the flimsiest nonsense to grant war powers to the executive to pursue international criminals; it is dangerous nonsense, nonsense which puts you and me and all our fellow citizens at grave risk by deteriorating our civil liberties and by increasing the palpable anti-American sentiment that spreads like a plague wherever PNAC has its way.

Jose Padilla is arguably an international criminal, perhaps not directly involved with the destruction of the World Trade Center but clearly conspiring to bring more of same to the extent of his abilities; he should be accordingly charged, tried and punished. That the rhetoric of the organization of international criminals with whom Padilla affiliated is rhetoric of "destroying the United States" does not in fact mean that said organization approaches having any such power or in any reasonable fashion can be raised to the status of an entity with which the United States can legally or even rationally war. Padilla was in possession of no vital state secrets, was not privy to information that could reasonably or even arguably affect security of a legitimately national character.

Padilla's detention and the current legal proceedings related thereto are simply and clearly a case of history's most spectacular international crime being used to justify the world police ideology of PNAC and fellow travelers. Padilla qua Padilla may be of little strategic importance even in the goal of bringing to justice the international criminals of al Qaeda; the truly important issue raised by this man's three year detention without due process is how long America will stand to be run by representatives with such frighteningly deficient moral development, by men and women of such stunted thinking ability as to not cry out against the nonsense of granting war powers to combat international conspiracy, by citizens who for one reason or another seem not to care for protecting the liberties that, if real and present, would give this nation it's only reason for pride, and if absent give this nation reason for nothing but shame. But if the Supreme Court fails to so rule, what is the "law of the land" on the matter? Is it the logical conclusions of the premises embodied by the Constitution? Or the current interpretations thereof which support this administration's "convenient prosecution"? The politics of the moment may not acknowledge it, but the law of the land precludes giving such vast powers to the executive except in the most dire of circumstances. It was an act of extreme irresponsibility of this president to request as he did, it is dereliction of duty for Congress to have granted his request, and it is a travesty that the Supreme Court has not yet struck it down.



Padilla v Hanft




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