Pre-trial Ruminations in the Padilla Case


“We now know much of what Jose Padilla knows, and what we have learned confirms that the President made the right call and that that call saved lives.”

James Comey, Deputy Attorney General; press conference

Yesterday, the Ashcroft Dept of Justice made another contribution to its catalogue of government sanctioned demagoguery. An appearance by Deputy Attorney General James Comey at a press conference provided fresh allegations in the case of “dirty bomber” Jose Padilla. Ashcroft’s assistant gave a lengthy dissertation on Padilla’s criminal background and links with al Qaida, knowing full well that neither Padilla nor his attorney would be allowed to refute the allegations. The notion of defending oneself is a foreign concept in today’s Justice Dept.

The charges against Padilla were described in excruciating detail with the obvious intention of terrifying the public and trying to enlist greater support for the government’s shaky case. Comey’s soliloquy showed how adept the Ashcroft Justice Dept is at abandoning all sense of restraint in a blatant attempt to prejudice a case pending before the Supreme Court. It’s rare when we can observe the concerted efforts of government employees whose sole purpose in life is subverting the course of justice; a talent that is highly valued in the Bush White House.

The Comey speech was a masterstroke of cynicism. His tale of Padilla’s alleged plot to “blow up apartment buildings” hit all the right notes; the perfect blend of originality and raw terror. Needless to say, he didn’t bother to corroborate any of the allegations, but what the hell; the charges would show up nicely on the front page of every newspaper in the country just as he had planned.

It hardly seems worth mentioning that no one knows under what conditions these confessions were “extracted” from Padilla. After all, the Bush Administration’s commitment to the humane treatment of prisoners is already widely appreciated, so why should the hapless Padilla warrant special consideration? Treating suspects with dignity might be “quaint”, but it’s hardly an effective way to run a war on terror.

Presently, Padilla is sitting in solitary confinement in a brig in Charleston, S. Carolina where he has been for the last two years. As yet, he has not been charged with a crime and has only met with counsel briefly on two separate occasions. In the new regime, the president has the authority to ignore these nettlesome problems of due process if he is dealing with “really bad guys.” His system reflects the conservative approach to finding “common sense” solutions to legal issues, rather than wasting all that time in court negotiating with “flannel-mouth” lawyers. (“Don’t they sue corporations?”)

These cases are now decided according to the discretion of the President; a man whose exalted sense of justice sent 152 people to their death in Texas during his tenure as Governor.

Fortunately, the US 2nd Court of Appeals has slowed the process of railroading Padilla. On Dec.13, 2003 it issued the following ruling; “We also conclude that Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.”

Following this ruling, the Bush Administration was ordered to release Padilla within a 30 day period, an obligation they have failed to meet. Instead, they have continued to keep him solitary confinement without any process in place to challenge the terms of his detention. In the Bush galaxy of injustice, the provisions of the Bill of Rights are only applied when the emperor is willing.

Deputy Attorney General Comey’s long-winded summary of Padilla’s vagaries was designed to scare the public, but it was noticeably lacking in evidence. The allegations that Padilla was planning to blow up apartments seems far-fetched at best. Al Qaida targets (typically) have some symbolic value. Either they are reminders of American hegemony or they are directed at critical parts of the infrastructure. (ie. The World Trade Center, Khobar Towers, the Pentagon and the USS Cole, are all symbols of American dominance. Attacks on these, resonate with those who share the same ideology) The attacks are not usually just the random killing of innocent people, but carefully chosen political targets. So, it’s not likely that Padilla was serious about blowing up apartments. It seems much more probable that the Justice Dept invented the whole story to prejudice the outcome of the case; a “probability” that borders on absolute certainty.

I have excerpted parts of the Q and A section of the press conference with James Comey to give readers the feel for the Dept of Justice’s response to questions that were omitted in the establishment press.

QUESTION: Why don’t you bring criminal charges against him now?

COMEY: Well, what we’re going to do is use all legal tools available to protect the American people from Jose Padilla. I’m not ruling out that criminal charges might not be an option some day. We, obviously, can’t use any of the statements he’s made in military custody, which will make that option challenging. (Comment; the confession was “extracted” illegally)

QUESTION: So you would you describe the release of this information as a coincidence considering that the Supreme Court is about the rule on the Padilla issue?

COMEY: Yes, I would. If it had been done sooner, it would have been released sooner. If it wasn’t done from a month from now, it would be done. This was a huge task, worked on very, very hard by a lot of people who care that the American people have the information to answer some of these questions….I’m not doing this to influence the Supreme Court case (Comment; Does anyone believe this?)

QUESTION: You said that if you had picked him up under criminal charges that he would have gotten a lawyer, would have clammed up and would have walked free. But couldn’t you have done what the Justice Department does thousands of times every year and offered him a plea agreement to work with you?

COMEY: All the time we offer plea agreements and people cooperate if we have a hammer over them. The challenge of the Padilla case, for me as the United States attorney, was the absence of a hammer. If I can’t credibly threaten criminal charges, no lawyer in the world is going to tell their client to talk to me, because a good lawyer would know, what I’m sure Mr. Padilla’s lawyers knew, that if you just clam up, they can’t do anything with this. (Comment; An admission that they had no evidence against Padilla)

QUESTION: So at this point, you have no plans to present any of this to a grand jury?

COMEY: No, we do not have any plans to present this, the information I’ve given you today, to a grand jury. I don’t believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel. (Comment; They intentionally broke the law and realize they won’t be able to prosecute their case)

QUESTION: … if you’re not going to bring charges any time soon and yet he has access to counsel, where does that leave him in the long run? Does he remain in military custody until the war on terrorism is over, whenever that is?

COMEY: Well, that’s an issue that we are thinking about actively. As we understand the law, the president has the power to hold him as a soldier of the enemy until the hostilities are over, whenever that might be. But there may be other options for him that we will explore. (Comment; If they can’t abort the law entirely, they will look for a technicality. In any event, Padilla is not getting out anytime soon)

COMEY; Our goal is to do whatever the law allows to protect the American people from this character (Comment; “Forget the law; we’re in charge now”)

We can see that the government has no more of a case against Padilla now than it did two years ago when Paul Wolfowitz opined, “He (Padilla) certainly wasn’t at the point of having a specific target. He had indicated some knowledge of the Washington, D.C., area, but I want to emphasize again, there was not an actual plan. We stopped this man in the initial planning stages.”

The planning stages? No conspiracy, no weapon, no motive….no nothing! This is the rationale that has kept Jose Padilla incarcerated for two years without any legal recourse? Shredding the Constitution and all of its “supposed” protections for what? To rid society of a man who “might” at some future date, have ideas of committing an act of terror?

This is “preemptive justice” in its purest, most insidious form. It is the presumption of guilt and the overturning of 200 years of American jurisprudence. The only possible outcome of preemptive justice is injustice; a result that has already been institutionalized by the Bush Administration’s flagrant disregard for the rule of law.

The 2nd Court of Appeals articulated a “straightforward” resolution to the Padilla predicament when it ruled; “Padilla will be entitled to the constitutional protections extended to other citizens.

Charge, try, and convict Padilla. But do so under the same rules and protections as are accorded any other citizen of the United States.”

These are sentiments we can all support.

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