by John M. Curtis
(310) 204-8700

Copyright September 12, 2005
All Rights Reserved.

uling “dirty bomb” suspect Jose Padilla could be held indefinitely, U.S. 4th Circuit Court of Appeals Judge J. Michael Luttig showed little mercy for the 34-year-old, New York-born Chicago resident. Deciding unanimously, the Court gave President George W. Bush more ammunition in the war on terror, ruling that U.S. citizenship offered “enemy combatants” no immunity from The Authorization for the Use of Military Force joint congressional resolution. In the wake of Sept. 11, Congress gave the president unlimited authority to detain suspected terrorists, indefinitely suspending habeas corpus—the right to be charged with a crime and brought before a judge. Legal scholars worry that such authority skirts the essential constitutional guarantees, including the right to face your accuser. Faced with an amorphous enemy, Congress played a delicate balancing act.

      Sept. 11 changed the legal paradigm where all individuals were protected by the constitution. Legal experts like White House counselor Alberto R. Gonzales, now considered a frontrunner for Bush next Supreme Court pick, crafted legal opinions allowing the administration to apply military law “in order to prevent any future acts of international terrorism against the United States,” ruled Luttig, reinforcing Bush's rights under the joint congressional resolution. “The court's ruling effectively declares the entire world, including the United States, a battlefield subject to military jurisdiction, where American citizens can be stripped of their constitutional rights,” said Deborah Pearlstein, director of the U.S. Law and security program at Human Rights First, a New York and Washington advocacy group. What Pearlstein doesn't get is that the war on terror has no boundaries.

      When Osama Bin Laden's henchmen flew airliners into the World Trade Center and Pentagon, a new type of World War III began. Instead of sovereign countries or recognized armies, the new enemy operated in the invisible, stealth world of organized terrorism. Elected officials had to find a way that the enemy could not hide behind constitutional protections. Gonzales, and other legal experts at the Pentagon, figured out that branding terrorists “enemy combatants” placed terrorists under military law and effectively neutralized protections under the U.S. constitution and 1949 Geneva Convention, giving prisoners of war certain rights. “They're not giving him a chance to fight this,” said Padilla's attorney Donna Newman, not recognizing she represents a person without rights. When it comes to terrorism, the Congress made it clear that different rules apply.

      Behind The Authorization for the Use of Military Force joint resolution was the belief that captured “enemy combatants” can provide invaluable intelligence to protect future terrorist attacks. Padilla reportedly had contact with Sept. 11 ringleader Khalid Shaikh Mohammed. Whether Padilla has any more valuable intelligence is anyone's guess. It's also questionable whether low-level detainees plucked off the Afghanistan battlefield have any real intelligence value or really threaten the U.S national security. Luttig's ruling gives the military fresh ammunition to do as it pleases with “enemy combatants.” “Why not go ahead and prosecute him?” asked University of Richmond School of Law Professor Carl Tobias, questioning the value in Padilla's continued incarceration. Constitutional scholars still haven't accepted changes in the law since Sept. 11.

      According to court documents, Padilla was trained in explosives by Al Qaeda in Afghanistan. After the U.S. invaded, Padilla, with other Al Qaeda operatives, escaped capture, eventually fleeing to Pakistan where he received instructions to blow up soft targets in the U.S.. Al Qaeda “directed Padilla to travel to the United States for the purpose of blowing up apartment buildings in a continued prosecution of Al Qaeda's war on terror against the United States,” read Luttig's opinion, clearly fingering Padilla as an ongoing threat to U.S. national security. In case anyone forgets, Oklahoma City bomber Timothy McVeigh committed mass murder April 19, 1995, killing 168. Luttig's ruling recognizes the extraordinary circumstances imposed by Sept 11. and the danger from ideological fanatics committed to destroying the United States. It's time for the legal community to catch up.

      When Padilla was nabbed by the FBI May 8, 2002, it was becomingly clear that Sept. 11 had not abruptly ended. On Dec. 14, 1999, Algerian terrorist Ahmad Ressam tried to cross the border from Western Canada with explosives packed in his trunk destined to blow up Los Angeles International Airport. For those paying attention, it was clear the millennium brought a new type of war. Sept. 11 became the tragic wake-up call that the country was indeed at war. Keeping Padilla locked up in the Navy brig at Charleston, S.C reminds terrorists, both foreign and domestic, that there's a draconic price paid for waging war against the U.S. Judge Luttig got it right seeing Padilla as a real threat to return “to the battlefield against the United States,” keeping him, and others like him, permanently confined. It's time for legal experts to catch up and accept today's post-9/11 world.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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