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Why Padilla is Not Irrelevant to You and Me

TChris has an excellent post on Attorney General Gonzales' comment on Jose Padilla.

How does Attorney General Gonzalez explain the administration's change of heart? He claims the administration's decision to hold Padilla for more than three years, first as a material witness and then as an uncharged "enemy combatant," as well as the administration's previous accusations of wrongdoing, are "legally irrelevant to the charges we're bringing today."

Lawyer Glenn Greenwald powerfully explains how the Padilla decision represents the true tyranny of the executive branch. He also ties the power grab into the upcoming Alito hearings.

The decision yesterday by the Administration to finally bring charges against U.S. citizen Jose Padilla -- who has been kept incarcerated in a military prison for three years solely on George Bush's order, in solitary confinement and indefinitely -- was done not in order to signal a retreat by the Administration with regard to its claimed right to imprison U.S. citizens without any judicial processes, but instead, to protect and solidify that power by ensuring that its patent unconstitutionality cannot be ruled upon by the U.S. Supreme Court in the pending Padilla case.

Almost certainly, the Administration wants to have its claimed power to unilaterally and indefinitely imprison U.S. citizens endorsed by the Supreme Court only once the highly deferential Sam Alito has replaced Sandra Day O'Connor, and a majority of the Court is safely comprised of a majority of justices with an almost absolutist reverence for unchecked Executive power.

For more on the Padilla power grab: Reddhed at Firedoglake; Yale Law Prof Jack Balkin;

Even conservative newspapers recognize the threat. As the Rocky Mountain News opined today:

it's a disgrace that the government waited so long to issue an indictment - and only then, apparently, to protect its policies from a possible setback in the Supreme Court.

More critical editorials and commentary: The Mercury News; the Washington Post; the New York Times; CBS News' Andrew Cohen;

Other good reads from the past on Padilla: Chisum Lee's 2003 Village Voice article ; Law Prof David Cole's 2002 Nation Article and 2003 American Prospect article, in which he wrote:

Throwing off the constraints of law does not make us more secure. It undermines the legitimacy of our efforts to quell terrorism and makes it less likely that Arab and Muslim communities, the targets of our double standards, will work cooperatively with us to root out al-Qaeda enemies. And it fuels today's unprecedented anti-Americanism, which in turn supports recruitment by the other side.

Our long-term security in the world rests neither on locking up thousands of suspected terrorists who turn out to have no connection to terrorism nor on attacking countries that have not threatened to attack us. On the contrary, it lies in a commitment to fairness, justice and the rule of law. That is the only true strategy of prevention.

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  • Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#1)
    by desertswine on Sat Dec 17, 2005 at 01:06:24 PM EST
    Today it's Jose Padilla, tomorrow...

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#2)
    by Dadler on Sat Dec 17, 2005 at 01:06:24 PM EST
    Forget actual evidence, one can sense how drunken satire at the "right" party has the potential to get you in big trouble now. And not just with your host. But with your government. The logical extensions of all this constitutional slippage are madness. To quore Devo: "Are we not men?" And women, of course.

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:24 PM EST
    None of this is surprising. However, what I WILL find surprising is whether the USSC will invoke the mootness doctrine and thereby refuse to pass judgment on the outrageous unconstitutionality of The Bush League's actions. But, since Congress refuses to bother to investigate ANY aspect of the Executive Branch, it probably should NOT surprise anyone if the Judiciary decides to coddle the Executive as well. The problem with this spinelessness is that it is destroying the nominal balance of power between the allegedly coequal tripartite branches. While the now demogogic and pandering-prone Congress has decided to abdicate its responsibilities, and has effectively delegated many of its powers to the Executive, one would expect the USSC to be much more circumspect and jealous of ceding ANY of its powers to the Executive. Well, we can hope at least. Besides, while I am no constitutional law scholar, it's my understanding that, like stare decisis, the USSC has broad discretion in deciding when and how to apply the mootness doctrine. Because The Bush League seems destined to continue to play these games with other defendants, this fact alone should trump the application of the mootness doctrine. Sooner or later (preferably sooner!), the USSC has got to realize that unless it speaks definitively on this specific issue, the USSC itself, as with Congress, has opted to willingly cede power to the Executive - thereby making Presidents virtually all-powerful and, by extension, ALL of us much less safe. The Founding Fathers are probably turning in their graves over this as it is precisely the sort of imperial presidency that they had striven so hard to avoid.

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#4)
    by jimcee on Sat Dec 17, 2005 at 01:06:24 PM EST
    Uhmm.. because I didn't want to kill innocent people?

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#5)
    by Dadler on Sat Dec 17, 2005 at 01:06:25 PM EST
    Jimcee, You haven't convinced with of that. Not with your reactionary commentary.

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#6)
    by Sailor on Sat Dec 17, 2005 at 01:06:25 PM EST
    padilla is an american citizen. EVERYONE, right or left, should be against the president being able to lock up an american citizen w/o charges or trial indefinitely. It is so obviously unconstitutional that it is a sad state of affairs that it is even a debate.

    Re: Why Padilla is Not Irrelevant to You and Me (none / 0) (#7)
    by chemoelectric on Sat Dec 17, 2005 at 01:06:25 PM EST
    What this does for the Bushists is not let them avoid being stopped by the Supreme Court; rather, it avoids, for now, the turmoil created by the Bushists' failure to obey a Supreme Court ruling contrary to their wishes. Either way, they still keep and torture prisoners unconstitutionally, it's just easier for them this way.