The Padilla Case


The presumption of innocence is foundational to any democratic form of government. Without that presumption, the state is free to exert whatever control it arbitrarily chooses in the incarceration or punishment of its citizens. This effectively destroys the firewall that safeguards the individual from the vagaries of government power and intrusiveness. It is absurd to talk about democracy if the most fundamental of protections for its citizens are not provided. When the presumption of innocence is denied, justice is denied, and democracy withers.

For the first time in American history this principle is being challenged outright in the government’s case against Jose Padilla. The Bush Administration is claiming that the president has the authority to strip a citizen of his constitutional rights in the name of national security. If they are successful in their efforts, the “inalienable” rights of man will cease to be. Citizens will no longer be protected by clearly articulated due process rights interpreted by an independent judiciary, but quickly dispatched by executive fiat. Justice will be dispensed at the discretion of the president.

These are the stakes in the Jose Padilla case, and we can say without any fear of exaggeration that it may be the most important case in the history of the American judicial system. Nothing else even comes close. However the case is decided will determine whether or not democracy will continue to function in the United States. It’s just that simple.

Padilla was arrested at Chicago’s O’Hare Airport 18 months ago and immediately taken into Federal custody. Although he was never formerly charged, he has been detained in a secure military facility in Charleston, North Carolina. He has been denied access to an attorney, and branded as an “enemy combatant”. His alleged crime, for which the government has never produced a of shred evidence, is that he was conspiring to detonate a radiological device or “dirty bomb” somewhere in the US. Mr. Padilla had no nuclear material with him or on his premises, nor did he have any other illicit material or weapons that might implicate him in the alleged conspiracy. In other words, there is no tangible proof of a crime or the intention to commit a crime. The one small bit of evidence the government has is the unpublished testimony of alleged terror Kingpin Abu Zubayda, who was captured in Pakistan a year and a half ago. Zubayda supposedly gave information during interrogation (torture?) that Padilla and he discussed detonating a “dirty bomb” somewhere in the US. Beyond this fragmentary and dubious testimony, no case against Padilla exists.

In response to these developments, President Bush designated Padilla an “enemy combatant”, a label that has no legal precedent and, therefore, no clear meaning. The implications of the label, however, have had a devastating affect. Padilla has been summarily stripped of all his constitutionally guaranteed rights and whisked off to a Navy brig under the President’s authority. President Bush’s rationale for this draconian action was summarized in his pronouncement concerning Padilla, “He’s a bad guy”.

The Second Circuit Court of Appeals decided last week in a 2 to 1 decision that Mr. Bush’s “bad guy” theory was not an acceptable benchmark for denying citizens their due process rights and has ruled that Padilla must be released within 30 days. The government has requested a stay in the case.

The Padilla case presents myriad legal and moral problems the most obvious of which is, “what if the government has the wrong guy?” Without any process in place to challenge the reasons for his detention, Padilla will simply stay in prison forever without any legal recourse. This result is clearly inconsistent with our assumption that men are innocent until proven guilty and, therefore, entitled to at least some due process rights.

The more pressing issue, however, relates to the most fundamental principles of democratic government. The question of legitimate authority was resolved more than 200 years ago when the founders were drawing up the Constitution. It was agreed that the legitimate authority of government rests with the people, but that the people can share that authority with the various branches of government. In turn, it is the government’s obligation to maintain its commitment to the rights of man. This is the essence of what we call “the Social Contract”, and it is executed by strict adherence to The Bill of Rights. The authority of the president is validated by his compliance with these principles. That is why, above all else, he is sworn to “preserve, protect and defend the Constitution of the United States”. He has no higher duty.

It’s clear that Bush’s intention in denying Padilla his rights is to undermine the rule of law. As we have stated earlier, the case against Padilla is completely without merit. It is simply being used as a fig leaf to disguise the usurping of greater presidential power. There is no better way to increase the authority of the executive than by diminishing the strength of constitutional protections, as one declines the other grows more powerful. For Bush and his mentors the Bill of Rights has become just another minor annoyance that needs to be surmounted by demagoguery and routine PR work.

The Padilla affair is a test case. Obviously, Padilla is no great threat to the general public and could be as easily processed through the criminal courts as dumped in a Navy brig. The real purpose of his detention is to create the precedent for dispatching dissidents or potential enemies of the state when things begin to deteriorate, or when they decide to “ramp-up” for other unpopular conflicts. In any event, it augers poorly for those who still cling to the ideals of American democracy and justice.

The implications of the Padilla case are quite grave. The dispatching of citizens without any legal recourse is, by definition, tyranny. The public relations people who monitor Bush’s every move, have cleverly concealed this fact, but the reality remains the same. The Administration is moving with inexorable determination towards a supreme presidency; the consummate power of the state embodied in one man. Jose Padilla merely establishes the necessary precedent.

We are entering a realm that is foreign to Americans. Even among those who are following the details of this case and the broader activities of the Bush Administration, there is a great deal of skepticism and denial. Many simply cannot face the grim fact that we may be seeing the end to our form of government. It is all happening so quickly and quietly. Unfortunately, history demonstrates that democracy is the exception rather than the rule.

We should not expect the Bush Administration to give up on the Padilla case because of an unfavorable ruling in court. That simply won’t happen. As New York Times columnist, Paul Krugman, has noted, we are dealing with people “who do not accept the legitimacy of our system”. They will not be dissuaded.

Nor should we expect help from a servile and collaborative media that works exclusively in the interests of those in power. Their mandate is to downplay the significance of stories like Padilla’s and the far reaching affects it will have on all our lives.

In the final analysis, the Bush Administration will not be swayed by the world community, the feckless Congress or the legions of protestors in the streets. We know this from experience. The only obstacle that has effectively slowed the Bush juggernaut is the growing number of insurgents in Iraq who have taken up arms against the occupying army, a clear example of force versus force.

This is an ominous sign for those who hope to sustain democracy in America through conventional and nonviolent means. It also exposes the mind set of an administration that is only deterred by greater strength.

The Padilla case is far from over. It is unreasonable to think that those who seek absolute power will be satisfied conforming to the constraints of the law. Everything we know of the Bush Administration so far suggests that they will not be limited by International law, congressional oversight or the Constitution. Why would they reverse themselves now when so much is at stake?

A victory in the courts would be the easiest way for them to achieve their long-range goal of setting the president above the law. The inalienable rights of man would become provisional, depending entirely on the discretion of the executive. Even the cornerstone of the American judicial system, the presumption of innocence, could be revoked according to the arbitrary judgment of the president.

This is the true meaning of the Jose Padilla case. It is as great a threat to our personal freedom and democratic form of government as any we have encountered in the last 200 years. In pursuing this case the Bush Administration has made itself the de facto enemy of our Constitution and the people it serves.

MIKE WHITNEY can be reached at:



MIKE WHITNEY lives in Washington state. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press). Hopeless is also available in a Kindle edition. He can be reached at