Vol. 5 Num 568 Sat. December 31, 2005  

Inside America
Three and half years in the life of Jose Padilla

Two questions: In what country can one of its citizens be held incommunicado for nearly three and half years, while the country's government asserts its power to hold the citizen indefinitely without charge or access to legal counsel? And in what country could its government use one set of facts to justify detaining a citizen incommunicado and then get an indictment against him using another set of facts?

If the answer to both questions is one of the usual suspects Cuba or North Korea, for instance you would be correct. But you wouldn't be wrong either if your answer was the United States of America.

That's what exactly happening to American citizen Jose Padilla, whom you may remember was arrested at Chicago's O'Hare International Airport on May 8, 2002. The Bush administration accused Padilla of being an "enemy combatant" and a terrorist, who was planning to set off a so called "dirty" radiation bomb in the United States.

At the time, many Americans felt relieved, believing that a terrorist with evil intentions was off the street. Many others, however, were dismayed by the Bush administration's contention that Padilla was not subject to the protection of the Geneva Convention because, as an enemy combatant and a member of a terrorist group, he was not operating in accordance with the laws and customs of war. Since then, Padilla has become a legal football, bounced around the U.S. government legal system without any sign that he will soon get his day in court.

So what do we know about Jose Padilla? Well, for starters, he does have a checkered past and was once a hoodlum and gang member. He spent time in jail for his involvement in at least two shooting incidents and had gang-related run ins with the Chicago police. In 1985, the 13-year old Padilla was ostensibly implicated in a gangland murder and locked up as a juvenile defender at age.

Padilla's neighbours remember a different kid. U.S. press reports quote some of them recalling Padilla as "a nice kid who always helped his mother."

Since his 2002 arrest, Padilla has been in court three times, even though he was not allowed access to his lawyers for two years. Last September 9, a three-judge panel of the 4th U.S. District Court of Appeals ruled that Bush did have the authority to incarcerate Padilla without charges, using as justification the joint resolution by U.S. Congress authorising military action following the 9-11 terrorist attacks. Padilla's lawyers denounced the ruling and said they would appeal.

Meanwhile civil libertarians in the U.S. expressed concern that the decision was leading the country down a slippery road where one day the U.S. government could keep any citizen in jail indefinitely for protesting its policies.

The Puerto Rican Padilla was a Roman Catholic who converted to Islam while in prison. After serving his sentence, he went to Fort Lauderdale where he became friends with Abraham Hassoun. Last November, a federal grand jury indicted Padilla and Hassoun and three others for allegedly being part of a conspiracy that planned to "kill, kidnap and injure" people abroad and for providing moral support for terrorists. Hassoun recruited Padilla, according to the indictment.

Initially, the Bush administration claimed that Padilla was a trained member of al Qaeda who was plotting to blow up apartment buildings in the U.S. with a dirty bomb that would spread radiation and kill a lot of people. The indictment, however, doesn't contain that charge.

The Bush administration planned to move Padilla from a military prison to a federal detention centre, but the move was delayed by the federal appeals court, which demanded more information from the lawyers on both sides before approving the transfer. Given Padilla's indictment in a civil court, the appeals court wanted to know if its earlier ruling of September 9 should be withdrawn.

The case got more complicated when the appeals court refused to vacate its September 9 ruling that gave Bush the authority to hold so called enemy combatants indefinitely without charge on U.S. soil. The court questioned why the Bush administration would use one set of facts to justify holding Padilla more than three and half years without charge and another set to convene a grand jury in Florida to indict him. In other words, why should we allow you, Uncle Sam, to have your cake and eat it, too?

Constitutional law experts noted that if the appeals court decided to withdraw its decision of September 9, it would be much tougher for Padilla to pursue its appeal, but would also remove judicial support for the idea of indefinite detentions. That's why the Bush administration doesn't want the U.S. Supreme Court to review Padilla's case.

Last December 16, the Bush administration filed a court brief, arguing that the U.S Supreme Court review is no longer needed now that it plans to try him in a civilian court. Padilla's lawyers will have a chance to respond before the court decides whether it will hear the case.

As New York Times explained the latest actor Orwellian sleight of hand -- in the Padilla saga: "The administration is urging the 4th circuit court to do just the opposite: to vacate its September (9) decision that upheld presidential authority to keep Padilla in open-ended detention and to 'recall the mandate,' depriving the decision of any legal force."

So here we now have situation in which an American citizen is locked away in a prison for no one knows how long, while the cherished American legal principle of due process is trampled and the decision of freedom or incarceration is left to a clueless president's say .

A few weeks ago, I perused "The First Circle" and "One Day in the Life of Ivan Denisovich," Alexander Solzhenitsyn's devastating indictments of the gulag that was the Soviet Union. I'm wondering what the great dissident is thinking about the Busheviks' assault on basic American principles. I'm also wondering if one day America, too, will have its own Solzhenitsyn to chronicle its government's abuse of power.

Ron Chepesiuk is a visiting professor of journalism at Chittagong University and a Research Associate at the National Defence College.