- Let's see, if I smear someone's good name, does that
entitled me to also lock him up in a military facility, cut him off from
his family and friends, deny him all his Constitutional rights and throw
the key away? Well, if you're George W. Bush, Jr., and your day job is
president of the U.S. and your top legal advisor is a guy by the name of
John Ashcroft, it seems you CAN! In fact, this is exactly what happened
in the case of Jose Padilla, an American citizen.
- In May, 2002, Padilla, a convert to Islam, was in Pakistan.
When he returned home to Chicago, he was arrested at the O'Hare airport
and held on a "material witness" warrant for a grand jury probe
that was investigating a "dirty bomb" plot by al-Qaeda. With
that legal status, Padilla had a right to counsel, to seek bail at a prompt
hearing and a right to challenge the propriety of his detention via any
criminal law proceeding.
- But, that was all a little bit too much "rights"
stuff to suit our boy-oh, "Wild West George." Bush decided, without
any legal authority or a factual basis, to designate Padilla as a "enemy
combatant." This is just a term Bush and Ashcroft made up! Padilla
was never anywhere near any battle zones in the Middle East. Bush's arbitrary
"designation" put the defendant in a Kafkaesque legal hell, where
he could be held by the military, (read Donald Rumsfeld), without any chance
for bail or counsel, no legal rights at all, and with little hope of Constitutional
relief or judicial review. Welcome to the "Bush-Ashcroft-Rumsfeld
- Fortunately, the 2nd Circuit Court of Appeals, which
sits in NYC, reminded Bush that the highest authority in the land is the
Constitution and that he has an obligation to obey it. In a Habeas Corpus
proceeding, an ancient legal remedy that tests the authority of the government
to hold someone in prison, the Court ordered Padilla to be released within
"30 days," unless the administration decides to bring criminal
charges against him. If it does, Padilla is then to be removed to the jurisdiction
of civilian authorities.
- Bush, et. al. should have studied their early American
legal history. The great Chief Justice John Marshall of the Supreme Court
made it crystal clear, in "McCulloch v. Maryland" (1819), that
America is a Republic. He underscored that the government created by the
U.S. Constitution is "emphatically, and truly, a government of the
people," and that the Constitution "emanates from them,"
and that "the powers are granted by them, and are to be exercised
on them, and for their benefit."
- Bush, like all elected office holders, is simply a trustee
of his position. That office doesn't personally belong to him. It belongs
to all of the American people. He lives in "our" house - - the
White House. Presidents come and presidents go, but the Republic itself
always remains (See, "US vs. Richard Nixon," 1974). Bush holds
office, with the highest kind of legal and fiduciary duty owed by him to
maintain, at all costs, the Republic, and, further, under Art. II, Sec.
III of the Constitution, "to take care that the laws be faithfully
- The Constitution wisely spreads the bestowed power into
three separate and distinct branches: the Executive, the Judicial and the
Legislative. Each is then suppose to be a check and balance on the other.
What the arrogant Bush did in the Padilla case was to unlawfully seize
the authority of the other two branches, the Legislative and Judicial,
unto himself. In effect, he became Padilla's judge, jury and sheriff! Come
to think of it, he unlawfully usurped Congress's power "to declare
war," Art. I, Sec. VIII (11), when on March 20, 2003, he ordered the
illegal invasion of Iraq. The evidence shows that Bush is a serial offender
of the U.S. Constitution.
- In any event, if Bush ultimately gets away with shredding
Padilla's Constitutional rights, what is to keep him from exercising such
tyrannical power against any other citizen of our Republic? The decision
in Padilla's case was a 2 to 1 verdict from a panel of judges. If Ashcroft
appeals it, then all the appellant judges of the 2nd Circuit will decide
the matter. Eventually, it will probably end up going to the Supreme Court
for a definitive ruling.
- Meanwhile, the 9th Circuit Court of Appeals, headquartered
in California, gave the administration another slashing rebuke. By a 2-1
panel decision, the Court blasted the Bush-Ashcroft Gang for detaining
660 POWs, without charges or trial, at the Guantanamo, Cuba, naval base.
The POWs were captured in Afghanistan and Pakistan. Judge Stephen Reinhardt,
speaking for the panel's majority, said, "Even in times of national
emergency - indeed, particularly in such times - it is the obligation of
the Judicial Branch to ensure the preservation of our constitutional values
and to prevent the Executive Branch (read Bush and Ashcroft) from running
roughshod over the rights of citizens and aliens alike...We cannot simply
accept (Bush's royal-sounding decree) that he has the unchecked authority
to imprison, indefinitely, any persons...without permitting...recourse
of any kind to any judicial forum, or even access to counsel."
- The 9th Circuit also gave Bush's clique a legal black
eye, in another important case: for indicting defendants, under a 1996
federal anti-terrorism law. That dubious scheme criminalized an individual
for giving so called "material support" to "foreign terror
groups," that had been targeted as such by a bureaucrat in the State
Department. The Court held those portions of the law as being "void
for vagueness." It added that the government must prove "beyond
any reasonable doubt" that a donor to such a selected group knew of
"its unlawful activities." This law was pushed in the Congress
by Sen. Arlen "Magic Bullet" Specter (R-PA), and then House member,
Sen. Charles "The Windbag" Schumer (D-NY).
- Finally, it was a bad week for the administration, vis-a-vis
an independent Judiciary. Keep in mind, however, that there are other cases
presently moving up through the legal system, which strongly reflect the
rights-bashing, oppressive, the-Republic-be-damned views of the Bush-Ashcroft
- © William Hughes 2003
- William Hughes is the author of "Saying 'No' to
the War Party" (Iuniverse, Inc.). He can be reached at: email@example.com.