It shouldn’t surprise us that the Supreme Court has decided to take a case about the public displaying of the 10 Commandments, but refused to hear the case of Jose Padilla, the alleged “dirty bomber”. On the one hand we have a hot-button cultural issue that is bound to divide the country along ideological lines. (good for Bush) And, on the other we have the most significant case in the history of the court, casually pushed aside for a later date. Both cases reveal how deeply politicized the high court has become, and how (eventually) some of its members will have to be removed to restore confidence in the legitimacy of the institution.
The case of Jose Padilla appeared in the media again this week, when a lower court ruled (as it has twice before) that the administration must either charge Padilla or release him from prison. The Bush team has no intention of doing either. Padilla is the “test case” to establish that the President can jail a US citizen indefinitely without charging him with a crime. This “precedent” is central to the administration’s plans for unlimited power. Tyranny is built on the foundation of arbitrary imprisonment; a principle that Bush and his colleagues fully understand.
Padilla has already served two and a half years in solitary confinement without ever being formally charged with criminal wrongdoing. The administration has affixed to him the moniker of “unlawful combatant”; the rubric under which all the rights of citizenship are summarily stripped from their victim. The Justice Dept has produced no solid evidence of Padilla’s guilt and has repeatedly changed its claims regarding the “alleged” conspiracy. The DOJ’s muddled approach creates the impression that the case against Padilla is weak at best; suggesting that he may be entirely innocent. At this point, however, his innocence or guilt is irrelevant. The larger issue is whether the administration will succeed in its quest to savage the Bill of Rights and 800 years of legal precedent with one swift jolt.
So far, the advantage goes to Bush. By refusing to hear the case the Supreme Court has reinforced the absolute power of the executive to (indefinitely) detain citizens without judicial review. Simply put, it marks the end of freedom in America.
It’s clear that the majority of the court knew exactly what they were doing by turning their backs on Padilla. After all, the ultimate purpose of right-wing appointees to the bench is to buttress the power of the president. Scalia’s comments are particularly searing in this regard:
“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Scalia’s remarks belie the fact that he has condemned Padilla to indefinite incarceration by refusing to hear the case. It would be difficult to cite a more stunning example of personal hypocrisy.
Conversely, Judge John Paul Stevens takes the alternate view when he states that the Padilla case poses, “a unique and unprecedented threat to the freedom of every American citizen... At stake is nothing less than the essence of a free society... For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”
“The tools of tyrants?” Is Stevens overstating his view?
Not really. What makes the case so extraordinary is that its meaning is completely straightforward. The court is not being asked to quibble over inconsequential aspects of the law. They are being asked, point blank, whether or not American citizens have ANY rights at all. It’s just that simple.
Padilla has been deprived of ALL of his rights, not merely a few. So, we must ask ourselves: Are US citizens entitled to any (definite) legal protections or are these protections simply granted at the President’s discretion? And, if our personal freedom is dependent on the subjective whims of the President, then why talk about “inalienable” rights?
There’s nothing haphazard in the way that the Padilla case has developed. In fact, there are various organizations that operate openly within the country that are determined to change the fundamental principles of American justice. With Padilla these groups have won a major victory and struck a mortal blow at the very heart of our system. As long as
Padilla sits in prison, deprived of all his constitutional rights, there are no guarantees of personal liberty in America.
Mike Whitney lives in Washington state, and can be reached at: firstname.lastname@example.org.
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