This copy is for your personal, non-commercial use only.

Trashing Every Principle of Constitutional Law
A Government Game of "Gotcha" with Jose Padilla
by ELAINE CASSEL

On Tuesday, November 22, two cases that I had followed and written about since their inception took a strange turn. Jose Padilla’s case received the most attention. He is the American citizen who was picked up in Chicago in May 2002, taken into custody in New York, and held in New York on a "material witness" subpoena. This is a little-known-about trick the government can play on you when it wants to lock you up but doesn’t quite know why. The New York prosecutors said they wanted to question him about a "dirty bomb" plot and they had to keep him locked up because he might flee the country.

A New York federal judge appointed Padilla an aggressive, shrewd attorney, Donna Newman, and she moved to have him released. But before that motion could be heard, literally in the dark of night, Padilla was turned over to military authorites on order of President Bush. He was named an "enemy combatant," and ordered held by the military for as long as Bush wanted-or until the end of "hostilities."

Newman promptly filed a habeas corpus petition–that most ancient of legal writs designed to allow judicial review by a prisoner who alleges he is being imprisoned contrary to law. It took two years for Padilla’s case to get to the Supreme Court, and when it did, in the summer of 2004, the Court ruled that the case had to be filed in another federal court-wrong venue. By this time, Padilla had been removed to a navy bring in South Carolina.

Upon refilling, the lower federal court found that Padilla was unlawfully held. As an American citizen, the U.S. District Court judge said, there was no lawful basis to hold him in prison without charging him with a crime. The judge ordered the government to charge him or release him, but stayed that order and allowed the government to appeal. That appeal went to the federal court in Richmond, Virginia and they, the rightist of the right-wing courts, upheld his detention, much as they had done in the case of Yaser Hamdi two years before. The Supreme Court had overruled the court on that case, however, deciding, at the same time it dismissed Padilla’s appeal, that there were limits on executive power in "wartime" to hold Americans. The Supreme Court sent Hamdi’s case back to the lower court, and said he could challenge the lawfulness of his detention at Guantanamo Cuba.

Lo and behold, within a few short weeks, Hamdi was released from Guantanamo on the grounds that he return to Saudi Arabia, where he held dual citizenship. The once dangerous terrorist was set free when the government was told to put up or shut up.

When Attorney General Gonzales held a press conference to announce that Padilla was being charged with conspiracy to commit terrorism abroad, he refused to answer any questions about why Padilla was not charged with plotting to do what Ashcroft said he was going to do (even the Ashcroft story had morphed over time from planning to detonate a "dirty" bomb, to plots to blow up bridges or apartment buildings). Further, he said his indictment, and removal from the navy brig in South Carolina where he had been for three years to the federal detention center in Miami had nothing to do with his being an enemy combatant. In other words, he still is one.

Does Padilla’s indictment mean he will get a real trial under the Constitution and federal law, or will Gonzalez and gang try to play by different rules, as they are doing in so many other "terrorist cases?" I imagine the later. And on the off chance Padilla is acquitted, he can be returned to the custody of the President of the United States as an enemy combatant.

The government played an even bigger "gotcha" on Ahmed Omar Abu Ali, a Falls Church resident, American citizen, who November 22 was convicted by an Alexandria, Virginia jury of conspiring to commit terrorism, including plotting to assassinate President Bush, bring in terrorists through Mexico, and blow up airplanes. The charges sound horrible, but if you read the indictment you would find that Abu Ali did nothing more that talk-not that talk like this is a smart thing-but there was no concrete plan. As Paul Wolfowitz had one time said of Padilla’s alleged "plot," it appears to have been a lot of "loose talk." But loose talk can get you life in prison these days.

But it’s not the charges against Abu Ali that were unusual. No, those are cropping up all here and there, against Arab men, some American citizens. What was unusual about Abu Ali’s case is that he was held, at the behest of the federal prosecutors, in a Saudi prison for twenty-two months, during which time he was repeatedly interrogated by Saudi law enforcement and the FBI. Eventually the Saudis obtained a confession, with FBI agents watching from behind a hidden camera. Though conceding that Abu Ali was interrogated for hours on end, day after day, the interrogations lasting throughout the night, during which he was often shackled and chained, and though he had no attorney (even though his parents were trying to provide him one), Judge Gerald Bruce Lee found his confession to be voluntary and uncoerced. Medical doctors testified that he had the marks of physical torture and the symptoms of having been mentally coerced, but prosecution doctors said he was faking.

Lee also said that Abu Ali was not entitled to the constitutional protections of an attorney and a speedy trial. Why? Because he was held by Saudi Arabia, not the US, and, further, he was never a criminal suspect and thus the Bill of Rights does not apply. The government did not explain how someone who was never a criminal suspect suddenly became a criminal defendant.

But I have a plausible explanation. Alexandria prosecutors brought Abu Ali to the U.S. and charged him after his parents had appeared to convince a federal judge in the District of Columbia that the government had their son and would not allow him to return home (Abu Ali was studying in a Saudi university at the time of his arrest). They, like Padilla’s lawyers, filed a writ of habeas corpus. Initially, the Justice Department denied having anything to do with Abu Ali’s arrest and imprisonment in Saudi Arabia. They even said, at one time, that he could come home whenever the Saudis were ready to release him (they had questioned him in connection with the bombing of a residential compound in Riyadh in 2003),

Then the government changed its tune and said he was too dangerous to be returned to the U.S., but they couldn’t say why-oh they could say, but only to a judge, not to Abu Ali’s parents. While the judge was pondering this posture of the government, the government produced him, without warning, in federal court in Alexandria and arraigned him on an indictment that was a lot milder than the one he was eventually tried on.

As with Padilla, the charges kept shifting and, of course, each time they got more serious, more sinister. Abu Ali will surely receive life in prison even though, as one attorney put it, the charge is more like a conspiracy to conspire at some future time. But then, if you looked behind the grandiose press conferences of his case, Padilla’s, and others like theirs, you would find the flimsiest of facts.

I can’t speak to the facts surround the charges that Padilla faces and that Abu Ali was convicted of. What I can speak to, is the sorry methods of our government as it plays games with American citizens. Nothing excuses keeping Padilla locked up incommunicado for three years, changing stories about him all the time and two weeks before it was due to file a brief explaining its position to the U.S. Supreme Court, pulling out a whole new set of facts and taking him out of Bush’s hands and into the hands of federal prosecutors.

And nothing excuses using a foreign government, known to engage in torture (one Saudi official testified, by video feed, in Abu Ali’s case, that Saudi’s had a 100 percent confession rate under their interrogation methods), to imprison an American for what reasons, we will never know and then, when the gig appears to be up, when a federal judge has a hard time believing the government’s ever-changing theory of where Abu Ali was and who had him, bringing him home and filing charges.

In these two cases, our government has violated every principle of constitutional law and criminal procedure that at one time made our criminal justice system something to be proud of. The Bill of Rights held no hope for these men. Only the right of habeas corpus-that last hope for the hopeless that holds the President to account for imprisoning someone-got then in the court house door.

But the government taught them a civics lesson they didn’t learn in school: the President, at least this President, thinks he can walk all over the Bill of Rights-your rights-and get away with it. When one maneuver fails, they have another up their sleeves. And when they run out of tricks, they turn their energies to making a criminal case against you, albeit the allegations are based in supposed facts that are years old and often come from other alleged terrorists who are making plea bargains and sentencing deals or from coercion, maybe even torture, in a foreign land.

You want due process? The Bush administration will make you sorry you asked. Gotcha.

ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She doesn’t like being lied to. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: ecassel1@cox.net