Individual Freedom, Liberty, Due Process, Equal Protection Under the Law, Freedom of Speech: Are These American Values Even Under Stress?


This USA Today editorial makes a point that I have been trying to emphasize in Washington circles: freedom, liberty and equal protection are only real if they are observed during times of high social stress. During World War II, American society interned innocent Japanese-Americans because of the fear that this U.S. citizens of Japanese descent were potential spies for their ancestral home.
This may have been true — but American values were trampled and tainted by this repugnant incident.
Personalizing the issue with the line, “Picture yourself in this scenario. . .,” the USA Today editorial comments on the case of Jose Padilla, whom U.S. District Judge Henry Floyd has ordered the U.S. government to release or charge.
Here is a key excerpt:
Despite the clear language of the Constitution that prohibits detention without trial, the Bush administration insists that it can indefinitely hold Padilla — or anyone else it chooses — as an “enemy combatant” without trial or even formal charges.
Padilla is one of a handful of Americans known to have been swept up in the war on terror, but he is the lone suspect not released or handled by the courts. So far, he has received only indictment by press conference – and with dubious credibility at that.

The article concludes with:
Perhaps he is a threat. Perhaps there’s reason for suspicion but not enough evidence to convict. Or perhaps the government erred in arresting him and would rather not admit it. Without a trial, there’s no way to find out.
For obvious reasons, the Constitution denies the president or his aides the power to decide by themselves that a citizen can be imprisoned indefinitely without judicial review. Armed with such power, an administration could imprison its political opponents or silence them with the threat.
Yes, there is a risk that if Padilla is freed he might make trouble. But tracking potential criminals is a job intelligence and police agencies can handle. The cost of setting a precedent that presidents can jail whomever they choose would be far greater.
This case is not just about Jose Padilla. It’s about every citizen’s liberty. If the foundations of freedom crumble under the stresses of the war on terrorism, the terrorists will have won.

If George Bush had the powers of a Saddam Hussein, Kim Jong Il, even a Hu Jintao, Padilla would probably be quietly executed and permanently “disappeared.”
George Bush is not an absolute monarch and not a despot. He is, however, far beyond his constitutional rights and must deal with Padilla within the constraints of American law, cognizant of this individual’s human rights.
His Attorney General, however, is living up to his reputation and simply asserting that the President has a right that simply does not exist. No law has been passed by Congress giving the President such extraordinary powers — and if passed, the Supreme Court would no doubt strike it down as blatantly in violation of the Constitution.
To preserve American liberty, we may need to let a very dangerous person go, but it is critical that we do so or charge him with a crime. Otherwise American values only have traction when they don’t count. When times are easy, it’s very easy to talk liberty and freedom — but these only matter when times are tough, as they seem to be now.
Charge him, or let Padilla go.
Not too long ago, I had a conversation with one of the top terrorist/Al Qaeda trackers in Scotland Yard. I asked if in his view any of the five or so British citizens who had been detained and later released from Guantanamo were a serious threat. These individuals had become darlings of the British press, talking about how they had been innocent victims and had no relationships to al Qaeda. They spoke openly about the abuse they suffered.
The response from this Scotland Yard guy was important. He said that he had no doubt at all that each of the five (maybe six) detainees was guilty and a serious threat. However, he said that Americans had extracted information from these people in extra-legal circumstances and that none of the discovered information could be used in British courts to charge these alleged criminals.
He said he was bothered by Guantanamo on many grounds — but the chief reason being that it undermined British security by pursuing a course with these detainees that put them beyond British law when he saw no reason why these people could not have been tried and convicted with the evidence that Scotland Yard had been assembling.
The British had no choice but to immediately release these Guantanamo detainees. That said, he told me that they are all being carefully watched and monitored.
Despite many people perhaps taking issue with ongoing British surveillance of these people, I have no problem with it — and I find that what the British did a testament to their own belief in their cherished values of liberty and democracy.
The Padilla case is a blight on the Constitution and our democracy — and though this fellow may indeed be a deranged and dangerous person though he may just as well be a fine, upstanding citizen — all Americans, conservative and liberal, should realize that this person’s plight could be his or her own.
They too should be calling for his release, to protect their own freedom.
— Steve Clemons