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“You Hold The Body”: Habeas Corpus, Jose Padilla, and the Exponential Growth of Social Control in the U.S.

Regardless of the firmness of his plans, Padilla is in custody, and thus incapacitated. The public safety is no longer threatened by this man. Is it really necessary to suspend habeas corpus, a most fundamental individual right?
Kevin Wehr

Issue #71, December 2004

Jose Padilla is a citizen of the United States. He recently converted to Islam, changed his name to Abdullah Al Muhajir, and visited the Middle East, including Afghanistan and Pakistan. Upon returning on 8 May 2002, Jose Padilla was arrested at Chicago's O'Hare airport by federal agents. Agents detained him based upon evidence collected by the CIA and other intelligence organizations that allegedly shows that he had met with al Qaeda agents and had discussed building and detonating a radioactive "dirty" bomb in the U.S. The U.S. Department of Justice suspected that Padilla was involved with a terrorist organization and may have plotted a terrorist act. On 11 June 2002 he was declared an "enemy combatant" and was transferred from federal custody in New York to a Naval brig in South Carolina. He was denied access to his lawyer and his family. He is in isolation, in the words of Attorney General John Ashcroft "for the duration of the war" on terrorism. In short, Padilla's constitutional right of Habeas Corpus has been suspended.

There are many troubling things about the Padilla case. First the smaller issues: Padilla was arrested on May 8th, but the arrest was not announced until June. The cynical suggestion is that Ashcroft waited to use this news politically. In early June the corporate media was obsessed with FBI whistle-blower Coleen Rowley's charges that intelligence agencies knew something beforehand about the attacks of 11 September 2001, but a failure of coordination kept them from preventing the tragedy. Ashcroft's June announcement praised the "strong coordination" between agencies that led to Padilla' capture, thereby helping to defuse a dangerous political situation.

Padilla was also detained immediately upon his arrival in the U.S. If he was in league with al Qaeda and part of a terrorist plot, why not follow Padilla so as to catch the other participants in his conspiracy? It is also troubling that Padilla was declared an "enemy combatant" when the evidence of this is far less clear than other cases, such as John Walker Lindh, who was captured in Afghanistan fighting for the Taliban.

However, these issues are minor in comparison with the suspension of habeas corpus. Habeas corpus is fundamental to Western law. It was first enshrined in the Magna Carta 700 years ago and forms a key foundation for the U.S. Constitution. Habeas corpus means "you hold the body." This constitutional right means that the government, when arresting someone, has to show the person's body and officially state the charges—the first step in due process. Along with unfair taxation, the suspension of habeas corpus was one of the main reasons for the colonies' revolt against England. Without the protection of habeas corpus, governments can do as they please with citizens, as did Germany under the Third Reich, or recent and ongoing extra-judicial "disappearances" in Central and South America and Africa.

When habeas corpus is suspended the suspect's world starts to look like something from Kafka's The Trial. Padilla was assigned legal counsel between the May 8th arrest and the June 11th announcement he was declared an enemy combatant. On June 11th, Padilla's court-appointed lawyer, Donna Newman, was traveling to court to represent her client when she heard that Padilla had been disappeared. Arguing on the basis of Article I of the Constitution and the 5th and 6th Amendments, Newman insisted she be allowed to speak with her client. Ashcroft and the Department of Justice declined this, arguing that the request was invalid because Padilla had not signed the petition—which he could not do because his lawyer did not have access to him. The government said that Newman did not have standing for such petitions because she did not offer evidence that disputed Padilla's status as an enemy combatant. Of course, without meeting with her client, there is no way Newman could have done so. Kafka couldn't have written a better plot twist. And so Newman took the issue to court. On 4 December 2002 U.S. District Judge Michael Mukasey ruled for Newman and Padilla, holding that he should be permitted to consult with legal counsel. Ashcroft has appealed this decision.

According to Article I, Section 9 of the U.S. Constitution, "Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The question of suspending habeas corpus, then, turns on interpreting "rebellion" and "invasion." Did Jose Padilla's return to the U.S. constitute an invasion? Hardly. Many plausible scenarios explain his behavior — the most basic is that he was coming home from a long pilgrimage to his adopted religious holy land. We cannot know what Padilla's explanation is because the Bush administration will not show us the body, we cannot ask it of him. Was he going to detonate a dirty bomb? Perhaps he was. Again, why not follow him to uncover those who may be working with him? The evidence is secret, but Paul Wolfowitz of the Department of Defense characterized the conspiracy as "more like loose talk" than Ashcroft's description of an "unfolding terrorist plot." How serious is this? Again, we cannot know, as we cannot ask him. Does one person make a rebellion? No. He or she may be a rebel — and, dear readers, aren't we all? Regardless of the firmness of his plans, Padilla is in custody, and thus incapacitated. The public safety is no longer threatened by this man. Is it really necessary to suspend habeas corpus, a most fundamental individual right?

The government cites two precedents for suspending habeas corpus, cases from World War II where enemies were captured on the battlefield — one Italian fighting for Mussolini who was born in America, and a group of German soldiers who landed on Long Island in an attempt to infiltrate the U.S. and blow up factories. The defendants in these two cases all got lawyers and trials — even in the midst of the war.

And whatever happened to the American Taliban, John Walker Lindh? If ever there was an enemy combatant, it would be him. Caught on the field of battle in Afghanistan (not a legal war, but a battlefield nonetheless), Lindh was slapped with ten criminal charges. Ashcroft, in announcing the charges, called Lindh an "al Qaeda-trained terrorist" and asserted that Lindh's "allegiance to those fanatics and terrorists never faltered, not even with the knowledge that they had murdered thousands of his countrymen." The penalties that Lindh faced for conspiracy to kill nationals of the U.S. and giving material support to the Taliban totaled three life sentences plus 90 years. All but two charges were eventually dropped, and Lindh plead guilty to the two least serious charges. He is now serving 20 years in a medium security prison in southern California where news reports that he is reading the Harry Potter series.

Lindh was captured on the battlefield — a real - battlefield, not O'Hare airport. He was charged with an excessive number of crimes, he was given a lawyer and due process, and the system worked more or less as it was designed to: negotiations between the defense and the prosecution exposed the shaky grounds of most of the charges, which were eventually dropped. This process was not given wide public attention — after Ashcroft's hyperbolic announcements of the charges, anything less than the death penalty could seem like a failure for the administration. But it was in fact a success in that it honored due process and gained a conviction.

And what about Yasser Hamdi, a Saudi national caught fighting at Mazar e Sharif just like John Walker Lindh? As with Lindh and Padilla, Hamdi is actually a U.S. citizen, as he was born in Louisiana. He is in Padilla's boat: Habeas Corpus suspended, imprisoned at a Naval facility in Virginia, awaiting oblivion. The only difference is that he was captured in another country fighting on a battlefield (Hamdi claims to have been fighting the Northern Alliance, not the U.S. forces). For this difference, Mukasey draws a distinction between the two cases, holding that Hamdi does not represent a precedent for Padilla.

On 11 March 2003, Mukasey ruled a second time in the Padilla case. He refused to reverse his earlier ruling that Padilla be allowed to meet with lawyers; Mukasey was clearly irritated, saying, "lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel…it is a ruling—a determination." Ashcroft appealed this decision on 26 March 2003. The case will now go to the Third U.S. Circuit Court of Appeals. Meanwhile, Padilla remains in isolation.

The N.Y. State Association of Criminal Defense Lawyers filed an Amici Curiae (friend of the court) brief in the last case, arguing that Padilla's detention is a "repudiation of the Magna Carta." In his 35-page ruling, Mukasey responded to this charge with an ironic tone, saying that this suggests that:

If Padilla does not receive the full panoply of protections afforded to defendants in criminal cases, a dictatorship will be upon us; the tanks will have rolled in.

Mukasey rejects such arguments, saying that "Padilla's is not only the first, but also the only case of its kind" and that there is every reason to "expect that this case will be just another of the isolated cases, like Quirin, that deal with isolated events and have limited application." What Mukasey ignores is the social context of the Padilla decision. It has been a three years since 9-11-2001, and this is the first court case of its kind. But this is precisely the point — why is Padilla different from the others?

Furthermore, the many legislative changes over the same period provide a backdrop to the suspension of habeas corpus that makes it all the more pernicious. Indeed, if this is not the symbolic tanks rolling in, then what is? What does the Padilla case mean? Many commentators have refused to take a stand on this issue, saying that if Padilla is guilty, the suspension of habeas corpus will be justified. This is exactly backwards. If he is guilty, then he should be punished. To be punished prior to a finding of guilt contradicts the liberties and values that U.S. citizens hold dear. In fact, when viewed in the context of other anti-democratic developments initiated by the current administration, the reckless suspension of habeas corpus takes us several steps down the road towards fascism. I do not use this word lightly.

Fascism can be distinguished from Nazism, but the Third Reich certainly remains one of the clearest examples. Fascist regimes generally consolidate power in the hands of the richest classes, maintains a strong alliance between these classes, their corporations, and the government, reduce or eliminate individual rights for reasons of public safety, and use appeals to mythic nationalist origins for legitimacy, often using propagandistic techniques.

The litany of developments of the last four years is ample support. Beginning with a stolen election, followed rapidly by rewards given to corporate cronies, and moving to the appointment of archconservatives to cabinet positions, the loosening of controls on corporations, elimination of environmental protections, attacks on women's rights, and the destruction of the church-state separation, the Bush regime has shown itself to be rabidly rightist. The series of legislative endeavors to maintain security in the last three years have been heavily skewed towards a reduction of individual rights, and increases in surveillance towards Total Information Awareness. And now U.S. citizens are being detained indefinitely without due process. Is that the rumble of tanks I hear in the distance?

What the U.S. Constitution and our traditions stand for is precisely what has been violated in the Padilla case: Padilla is neither a terrorist nor a criminal until he has been proven so in a court of law. He must remain innocent until proven guilty. Until such proof is accepted by a jury, he is an ordinary citizen, just like you or me.

If any citizen can be secretly detained for an indefinite period of time on the flimsiest of evidence, unable to talk to anyone, not even able to know what the charges are, how will you stay safe? May I see your papers, please?

A sidebar:

Padilla in BBC

Padilla in Time

A case study in media bias: The same photograph portrayed by the BBC (on the left) and by Time magazine (on the right). Time's close up makes Padilla's visage appear far more sinister. The Time magazine article describes Padilla's name-change by calling his new Islamic name a "notorious alter ego, Abdullah al-Mujahir." It further calls him "a former street hoodlum." The BBC, on the other hand, acknowledges that Padilla "got into trouble" as a youth, but also reports that neighbors "remember Brooklyn-born Jose as 'a nice kid who always helped his mother.'"

Kevin Wehr is Assistant Professor of Sociology, California State University at Sacramento.

Copyright © 2004 by Kevin Wehr. All rights reserved.