The American Enemy Combatant

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Yesterday, the US government finally indicted the only American “enemy combatant” in the war on terror, Jose Padilla. But only after holding him for over three years, incommunicado, in a South Carolina military brig and denying him the basic legal rights guaranteed to all citizens.

The official charges are conspiring to commit murder and aid terrorists. According to Reuters, the indictment states that

The defendants…operated and participated in a North American support cell that sent money, physical assets and mujahideen recruits to overseas conflicts for the purposes of fighting a violent jihad.

Notably absent from the criminal accusation is any mention of his alleged plans to attack New York apartments or to detonate a “dirty bomb” within the US, both earlier advanced as primary allegations by Att. Gen. Gonzalez and Sec. of Defense Rumsfeld. In addition, there are indications that the evidence from a “top al Qaeda leader” was obtained though torture at the secret CIA “black-sites” abroad.

Yet, apart from the question of his guilt, is the legality of suspending a US citizen’s right to habeas corpus indefinitely, holding him incommunicado without either formal charges or access to his lawyers. The indictment, even if it is not revoked—as it could be at any time, should not distract from the means used to achieve it.

Jennifer Daskal, Advocacy Director for U.S. Programs at Human Rights Watch, said:

This speaks to who we are as a nation and what we value, that we’re still holding over five hundred detainees without charges for over three years. Padilla’s indictment doesn’t remove that. This is something that should concern all of us as Americans. We are a nation built on the rule of law. …Certainly, those who have engaged in terrorist activity should be held accountable. But like Padilla, these individuals should be charged, prosecuted, and given the opportunity to defend themselves.

Civil liberty and human rights groups have taken Padilla’s case as a touchstone for the strikes against the fundamental protections that define U.S. citizenship. In a press release yesterday, Human Rights First issued a reserved welcome:

It is long past time for Mr. Padilla to have his day in court. [However,] it remains to be seen whether it is possible now to repair the damage done to the rule of law and the cause of justice by the past years worth of indefinite detention, incommunicado interrogation, and denial of the most basic due process rights.

Over the past three years, Padilla’s case has gone through a series of courts that have flip-flopped in reconciling the Administration’s demand for nearly-unlimited flexibility in the war on terror and a citizen’s constitutional right to legal security. Rulings in his case concerning the legality of indefinitely detaining a US citizen incommunicado and without charges , have bounced between Federal Courts and US Appeals Courts, since he was seized from a Chicago airport as an “enemy-combatant” in 2002, and now sit before the Supreme Court.

The indictment was issued just six days before the Department of Justice was supposed to submit its arguments to the Court defending its anomalous procedures in detaining the American “enemy combatant.” Padilla’s lawyers assert that the timing of the indictment is intended to make moot the Supreme Court’s decision to review the legality of those actions.

Stanford Professor Jenny Martinez, who is part of the legal team representing Padilla, told the Washington Post, “If I were the government, I would not have expected to win in the Supreme Court. I think the government is clearly trying to evade Supreme Court review.

Martinez told the Post that they will be arguing for the Court to proceed with its review because his indictment is revocable and he his “enemy combatant” status is not yet officially removed. In previous cases, the Court has ruled to continue a review when an indictment was judged an act of “evading review” and that, therefore, the situation was “capable of repetition.” Naturally, Attorney General Alberto Gonzalez, denies any political strategy in the sudden indictment.

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