The Great Writ

Lest you think that all of my posts on Greek Chorus will be confined to the theoretical realm, I thought I'd take the opportunity to comment on this front page NYT piece on the pre-trial issues surrounding the prosecution of Jose Padilla.

For those of you who are unfamiliar with Mr. Padilla's story, he is an American citizen and accused terrorist who was stopped by officials at Chicago's O'hare International Airport in 2002 and was subsequently designated an enemy combatant by the Bush Administration. Being so designated, it was the Administration's position that, despite that fact that he is an American citizen, they have the right to detain him until the "end of hostilities" (ostensibly until they declare an end to the war on terror, which is in my view, indefinitely). As an enemy combatant, the Administration contends that he has no right to legal counsel and perhaps no right to any sort of habeas corpus review.

The status of his right to habeas review is still an open question because on the veritable eve of the likely granting of cert. on his petition by the Supreme Court, the Administration abruptly transferred Padilla into the custody of the Justice Department and charged him with a number of crimes, none of which bore much resemblance to the actions he was initially accused of undertaking (including conspiracy to detonate a "dirty bomb").

Those skeptical of the Administration's motives (myself included) contend that this transfer was in effect an attempt to sidestep what the Administration perceives as a potentially damaging ruling on the habeas issues. There is some speculation the Administration may again choose to hold Padilla as an enemy combatant should he be acquitted in his criminal trial. This was also an argument made by his counsel as a reason why the Supreme Court should still have agreed to hear his petition. In fact, the 4th Circuit Court of Appeals actually denied the Administration's request for the transfer of custody, declaring that "we would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review." Nevertheless, the Supreme Court ultimately overturned this ruling and subsequently denied Padilla's habeas petition on mootness grounds, albeit with three justices dissenting from the denial of cert.

With that as background, the article describes (with photos) the conditions of Padilla's detention while classified as an enemy combatant and outlines one of the main pre-trial arguments being made by his attorneys. They claim that he is unfit to stand trial because he is incapable in aiding in his own defense. They cite experts who have examined him and have stated their clinical belief that he suffers from severe post-traumatic stress disorder (PTSD).

Furthermore, they also contend that the "aggressive interrogation techniques" to which he was subjected (which they contend include "hooding, stress positions, assaults, threats of imminent execution and the administration of 'truth serums' ") have made Padilla so suspicious that at times he contends that his own lawyers are actually part of an extensive ruse on the part of the government to interrogate him further. The government obviously denies the accusations of torture and retort that "Padilla's conditions of confinement were humane and designed to ensure his safety and security"

I frankly don't even know where to start with this. I could talk about how we seem all too willing as a nation to continence torture if we perceive that torture to make us more safe. I could start with how disturbing I find it that our government feels justified in manipulating our legal system so as to best avoid a head-on adjudication of these issues. I could tie this discussion into the recent passage of the Military Commissions Act, which in my view, tries to place a stamp of legitimacy on the denial of what I view as core Constitutional and human rights. But rather than tackle all of these admittedly large and complex issues today, let's just focus on the notion of denying an American citizen the rights afforded by The Great Writ.

Volumes have been written by much smarter people than myself on the legal issues surrounding Padilla specifically and the enemy combatant designation generally. I would just pose the question:

Legalities aside, do we want to be governed by individuals who feel that denying and/or manipulating the core rights of American citizens in the name of the "war on terror" is a morally acceptable policy decision?

Given my phrasing of the question, my view on the answer should be fairly obvious. To me, the multitude of arguments supplied by those who support the Administration's handling of Jose Padilla boil down to a technocratic/utilitarian worldview which places security and efficiency above all else. Perhaps even worse, by employing evasive maneuvers with the express purpose of shielding these issues from the public eye through a combination legalistic gymnastics, "carefully" worded press releases and tortured legal memorandums, the Administration has done its utmost to unilaterally revoke our rights. The good news is that history has shown our resilience with respect to these incursions upon our liberty, and in the end, we always seem to arrive at a reasonable equilibrium, though often only after a fair bit of zigging and jagging along the way.