Padilla case raises constitutional concerns, lawyers say

Questions are growing over the government’s detention of Jose Padilla without criminal charges. In a closed meeting with the Senate Judiciary Committee June 13, Justice Department officials said they will hold Padilla in custody indefinitely until the Bush administration decides its “war on terrorism” is over. The government says it will not file charges against him.

Padilla was arrested May 8 but not until June 10 did Attorney General John Ashcroft proclaim him to be a top terror suspect, claiming the government had unearthed “an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.’” No specific evidence was cited.

Nevertheless, the Bush administration has labeled Padilla, a U.S. citizen born in Brooklyn, N.Y., an “enemy combatant.” The government transferred him to military custody June 10, thereby avoiding a court deadline that would have required him to be charged or released.

The Bush administration’s treatment of Padilla marks a new and dangerous turn, civil liberties advocates say. Up to now, the government applied the repressive measures of the Patriot Act to non-citizens. The Padilla case shows that this distinction “is easily being elided” by the Bush administration, David Cole, professor of law at Georgetown University, told the World.

Anthony D. Romero, American Civil Liberties Union (ACLU) executive director, said, “If a non-citizen like Zacarias Moussaoui can be tried in a regular court of law, surely a United States citizen can be afforded the same access to justice. The government has failed to justify why our traditional system of American justice should not apply in the case of Jose Padilla.”

Padilla’s lawyer, Donna Newman, said the status of enemy combatant does not apply to Padilla because Congress has not declared war. Newman told CNN she has no idea when or if she will be allowed to see her client. She says he has been denied the right to counsel, the right to due process, and the right to be charged by a jury. “The last time I looked at the Constitution, he still had constitutional rights,” Newman told reporters. This case should be a “constitutional concern for everybody,” she said.

The Padilla case is one of many that are raising civil liberties concerns. The Center for Constitutional Rights (CCR) filed a class action lawsuit April 17 on behalf of more than 80 immigrants detained by the Immigration and Naturalization Service (INS) since Sept. 11, with no criminal charges or evidence of involvement in terrorism. The suit charges, among other things, that plaintiffs were subjected to beatings, verbal abuse, solitary confinement and denial of the right to religious practice.

CCR Legal Director Bill Goodman said the Justice Department, FBI and INS “have engaged in a full-scale assault on the Bill of Rights. … What the [Justice Department, FBI and INS] do is use the immigration laws as a pretext for circumventing constitutional rights and, in so doing, they have violated those rights on a massive scale.”

The administration is “sacrificing the rights of some for the purported security of the rest of us,” civil liberties expert Cole told the World. The government’s actions, he said, are “problematic constitutionally” and also “undermine the legitimacy of a war on terrorism.”

Cole said these cases represent a “move away from prosecution of individual criminal action toward guilt by association.” The Bush administration is making it a crime to support even lawful organizations, “locking up people, not because of conduct, but because of vague associations,” he said.

In Defense of Freedom, a coalition of over 30 civil liberties groups, wrote to the House and Senate Judiciary Committees June 4 opposing recent changes by Ashcroft to the Attorney General’s Guidelines, giving the FBI a green light to spy on lawful religious and political organizations.

On June 22 the Massachusetts ACLU and labor, immigrant rights and other groups are holding a Rally in Support of Civil Liberties and the Rights of Immigrants, in the Boston Common.

The author can be reached at suewebb@pww.org