Jose Padilla’s No-Win Dilemma

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.
Ex Parte Milligan [1866]

His indictment by the federal government at first seemed like a welcome start for his holiday season. Indictments are not always so. Jose Padilla’s case seemed to be the exception until additional facts became known.

It all started at Chicago’s O’Hare airport where Mr. Padilla was arrested in May 2002. His arrest thrilled then attorney general John Ashcroft. Giddy with excitement, he held a press conference immediately after the arrest to herald the triumph of democracy over terror. He told a waiting world that Mr. Padilla was exploring a plan to build and explode a radiological dispersion device or “dirty bomb” in the United States. The entire nation breathed an audible sigh of relief, secure in the knowledge we had been spared another 9/11. Relief was short lived Soon after the pronouncement Mr. Ashcroft’s was contradicted by Deputy Defense Secretary Paul Wolfowitz who said there was not “actually a plot beyond some fairly loose talk.” Mr. Padilla was jailed as a material witness in a civilian institution. He met with his lawyer a number of times. Then a strange thing happened.

Fearing his lawyer might do something to slow down the prosecution of Mr. Padilla Mr. Bush bestowed a new title on Mr. Padilla. Instead of the title “defendant” he was called “Enemy Combatant.” That was a stroke of genius on the part of the government.

When Mr. Padilla became “Enemy Combatant” he was immediately transferred from a civilian jail to a navy brig in Charleston, S. Carolina where he was placed in solitary confinement. Mr. Padilla’s new title was accompanied by a loss of all his constitutional rights including the right to consult with a lawyer, the right to any kind of a trial, much less a public and a speedy one and the right to confront his accusers and the evidence being used against him. The government was given the right to question him as long and as often as it wanted without any lawyer being present. In short, it was a wonderful thing for Mr. Bush and his minions. It was less wonderful for Mr. Padilla. Here is why it was less wonderful.

From June 2002, until March 2004, Mr. Padilla was denied the right to counsel. The denial occurred notwithstanding a conference in federal court in New York in January 2003 in which the judge said the conference: “was supposed to be for the purpose of discussing what steps had been taken voluntarily by the parties to arrange for counsel to see Mr. Padilla. It appears. . . that the government has no intention of allowing that to happen.” That did not phase the government. It continued to prevent Mr. Padilla from consulting with a lawyer. The first time Mr. Padilla was permitted to see a lawyer was in March 2004.

Since March, 2004, Mr. Padilla has been before a variety of federal courts. One said Mr. Bush was not as powerful as he likes to think and couldn’t treat Mr. Padilla the way he’d been treating him. A higher court said it was quite all right for Mr. Bush to deprive people of their constitutional rights because we live in really dangerous times (my words not theirs). Mr. Padilla’s lawyers appealed that to the Supreme Court of the United States and Mr. Bush decided that rather than take the chance that that court might not agree that he is all-powerful and can willy-nilly deprive people of constitutional rights, he would voluntarily agree to do what Mr. Padilla wanted. What Mr. Padilla wanted was to be indicted for a crime so that he could have a lawyer represent him and have all the other rights guaranteed him by the United States Constitution that had been taken away by George W. Bush.

Mr. Padilla’s indictment is a no-lose proposition for Mr. Bush. It is a no-win situation for Mr. Padilla. Now that he has been indicted Mr. Padilla has all the rights he did not have when he was in solitary confinement in a navy brig. He knows what he is charged with and has a chance to prove he is innocent. The government wins because it is a poor loser. According to commentators on Mr. Padilla’s case, if he is acquitted the government may again bestow on him the title of “Enemy Combatant”, put him back in solitary confinement, and hold him for the rest of his life. That is the same penalty for which he’d be eligible if convicted. As I said, it’s a no-win situation for Mr. Padilla. It’s a no-win situation for the constitution. Mr. Bush doesn’t care about either of them.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: or through his website:



Christopher Brauchli can be e-mailed at For political commentary see his web page at