Saturday, August 18, 2007


By William Fisher

The conviction of Jose Padilla - whose larger implications are being labeled by legal experts as one of today's most significant Constitutional issues - has been largely ignored by editorial writers at the nation's newspapers.

While hundreds of US dailies ran the story of the guilty verdict handed down against the Brooklyn-born "dirty bomber" last week, few front-paged the conviction, and the trial and its outcome drew editorial comment from only a relative handful of publications.

Among the exceptions was a small number of the naton's 1,400-plus newspapers that have consistently opposed the Bush Administration's approach to the "global war on terror" - and a few that have been staunch supporters of that approach.

Yet virtually all Constitutional scholars and civil liberties advocates remain outraged that a US citizen was held virtually incommunicado in a navy brig for years before getting his day in court.

While few express any support for Padilla, most view his case as raising critical issues that go far beyond his three-month Miami trial.

Their issues range from questioning the authority of the president to declare anyone, including a US citizen, an unlawful enemy combatant; the Constitution's guarantee of a speedy trial and the right to confront one's accusers; Padilla's capacity to participate in his own defense after allegedly being abused while being held in solitary confinement for more than three years; and the legality of the concept of prolonged "preventive detention."

Larry Cox, executive director of Amnesty USA, summed up the position of much of the civil liberties community. Padilla's trial, he said, "failed to address a key issue which poses a great threat to all Americans -- detention of a US citizen without charge, as well as alleged torture and ill-treatment during detention."

He added, the jury's verdict "cannot be seen as an endorsement of a regime of unreviewable executive detention. President Bush should not take today's ruling as permission to continue to hold Americans outside the law at his whim."

The Padilla story began in May 2002, when he stepped off a plane in Chicago and was met by federal agents armed with a material witness warrant, which enabled them to arrest him without a criminal charge.

Padilla spent a month in a jail in New York on that warrant, until President Bush declared him an enemy combatant, sparking a lengthy Legal battle over presidential powers to detain US citizens indefinitely.

During that period, then Attorney General John Ashcroft hastily called a news conference during a visit to Moscow to announce Padilla's arrest and his intention to detonate a radioactive "dirty bomb" in a major US city and to blow up apartment buildings.

Padilla was then transferred to a Navy brig in Charleston, S.C., where he was held incommunicado, refused access to a lawyer, and allegedly tortured. He was not charged with a crime or afforded basic constitutional rights until late 2005, when the Supreme Court was poised to consider his appeal.

His three-month trial opened in Broward County, where Padilla once lived. The 36-year-old and two co-defendants were quickly found guilty of conspiracy to murder, kidnap and maim people, as well as providing material support to terrorists. Between his arrest and his trial, the "dirty bomb" allegation disappeared. Unless his conviction is reversed on appeal, Padilla faces life imprisonment.

Padilla's conviction "is a significant victory in our efforts to fight the threat posed by terrorists and their supporters,'' Attorney General Alberto Gonzales said in a statement. "As this trial demonstrated, we will use our authority as prosecutors to dismantle terrorist networks and those who support them in the United States and abroad.''

During the period when Ashcroft and other Bush Administration officials were trumpeting the "dirty bomb" charges, some of the nation's editorial writers became cheerleaders for the Bush Administration's approach to counter-terrorism.

But most - with a few exceptions -- have been silent on the Padilla verdict. One of the exceptions is the Charleston S.C. Evening Post, which hailed the verdict as a "Double Victory" and a "resounding vindication of the Bush Administration's policy of preventing acts of terror."

Said its editorial page, "In May 2002, when Padilla was arrested, the major concern was to prevent another attack. Padilla wanted to carry out murder and mayhem on a similar scale of horror to 9/11. He was prevented from doing so and had his day in court. Score a victory for counter-terrorism and for American justice."

But most of the few newspapers that editorialized on the verdict took another view. Typical was the Sarasota (Fla.) Herald Tribune, which wrote, "Military courts have their place, and foreigners are not entitled to all the protections of US citizens. But Padilla was born in America and arrested on US soil. His case belonged in the US courts, where prosecutors finally demonstrated that they did, in fact, have a case against him."

Other Florida newspapers also weighed in editorially. The South Florida Sun-Sentinel opined, "There shouldn't be any displeasure that Jose Padilla was found guilty in a Miami courtroom of supporting terrorism. The speed in which the verdict was returned indicates the jury was convinced of his guilt. But there should be plenty of concern about how the entire case was mishandled by the federal government, and the Bush administration, which has its own definition of citizen rights and protections. It is hard for anyone to feel good about the way this case went forward.

"Some critics of Bush's strategy say the nation should rely less on military might to fight terrorism and focus more on tracking down al-Qaida and other groups through criminal investigations. The Padilla case indicated that charges against American citizens, at least, can be successfully prosecuted in civilian courts without resorting to secret military tribunals."

And the Daytona Beach News-Journal, an aggressively anti-Bush daily, said in an editorial entitled "Jose Padilla verdict masks a gross travesty", "A jury in Miami took less than two days to find Jose Padilla guilty of conspiracy to fund and support Islamic terrorism abroad. It's not quite the end of the story, if rights and due process are to matter at all in America.

"The Padilla verdict ...coming as it did at the end of a five-year odyssey of exaggerated accusations and stunning abuses of power against an American citizen, speaks more of the Bush administration's manipulation of fears, facts and prejudices to deceptive ends than of justice done. Why should this case matter to you? Because the abuses it entailed along the way have yet to be rectified either by Congress or the Supreme Court. Until then, what happened to Padilla can happen to anyone."

Nearby, the Palm Beach Post's editorial -- "Arbitrary Justice" -- oncluded: "Guilty, the right way." Meaning, in a civilian court.

Elsewhere, editorial coverage was arguably more predictable.

Said The New York Times, "It is hard to disagree with the jury's guilty verdict against Jose Padilla, the accused, but never formally charged, dirty bomber. But it would be a mistake to see it as a vindication for the Bush administration's serial abuse of the American legal system in the name of fighting terrorism. On the way to this verdict, the government repeatedly trampled on the Constitution, and its prosecution of Mr. Padilla was so cynical and inept that the crime he was convicted of - conspiracy to commit terrorism overseas - bears no relation to the ambitious plot to wreak mass destruction inside the United States, which the Justice Department first loudly proclaimed. Even with the guilty verdict, this conviction remains a shining example of how not to prosecute terrorism cases."

A similar note was struck by The Washington Post, which wrote, "Every person held by the government -- US citizen or not -- must have due process to challenge that detention. The presumption must be that US citizens can rely on the federal courts to oversee their prosecutions. And Mr. Padilla's abhorrent disappearance into limbo should come to be remembered as an aberration never to be repeated."

A somewhat different theme appeared in the Los Angeles Times. "Padilla's importance is in what it sanctions but did not decide: the government's confinement of US citizens without charges. Padilla's military detention and his treatment while detained may in fact have been unlawful. The Bush administration's real victory, then, was in preventing the courts from saying so."

Said The Baltimore Sun, "Jose Padilla was a petty criminal who found Islam in an American prison and thought that in jihad he could amount to something. He didn't: One government intelligence report suggests that the idea of a dirty bomb was a ruse to allow him to get away from the al-Qaida camp where he was staying. He's pathetic, actually. Yet because of someone like this, the Bush administration was willing to junk the Constitution and redefine the legal system as it saw fit. That's the real crime."

And the widely respected Christian Science Monitor wrote, "America can't win a global war to defend its values by stepping on them...One protection from Islamic terrorists lies in clinging to the civic virtues that terrorists seek to end. Such values are a source of safety and should not be eroded in trying to kill, capture - or prosecute - suspected terrorists. One of America's strengths in this war lies in being able to rally other nations to its side by upholding universal principles. That same strength also weakens terrorists."

Editorial writers will doubtless have another chance to weigh in on the issues raised by the Padilla prosecution - as he appeals his conviction.

According to Marjorie Cohn, president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, there are numerous avenues for appeal. She told Truthout, "The appeals court erred in upholding the government's authority to imprison a US citizen for several years without charges. The government violated Padilla's due process rights by failing to bring timely charges against him. Finally, Padilla's lawyers' motion to declare him incompetent to stand trial because of the torture and abuse to which the government subjected him during his pretrial detention was wrongly denied. Any of these errors, or all of them cumulatively, could result in reversal of Padilla's convictions on appeal."

But the consensus among civil libertarians is perhaps best summed up by one of the nation's leading Constitutional law experts. According to David Cole, Professor at Georgetown University Law Center, "The conviction shows that the government did not need to assert the extraordinary power to detain Padilla without charges for several years. But at the same time, because of how they treated Padilla in detention and others in CIA black sites, the government was never able to bring him to trial on the much more serious charges of plotting a 'dirty bomb' and blowing up apartments in the United States. In essence, the administration gambled that it could get Padilla on something, even if it couldn't hold him responsible for what they say he was planning to do. In this instance, they prevailed. But do we really want the government gambling with our national security?"

Whether editorial writers will opt to try to address that question next time around remains to be seen.