Drivin’ A Car With Your Feet

Sunday, March 6th, 2005 9:05 am by carter

I have followed the case of Jose Padilla from a distance but with interest. Padilla is an American of hispanic origin who is reported to be a member of al Quaeda. Padilla was arrested in Chicago on May 8, 2002. The government designated Padilla an “enemy combatant”, and he has been in detention since his arrest. My interest in this case is coupled with a large dose of uneasiness that an American could be detained indefinitely and not afforded his rights guaranteed every U.S. citizen under the Constitution, including his due process rights to be notified of the charges against him, to have a speedy trial with a jury of his peers and to be represented by an attorney.

These facts are troubling to me. Had Mr. Padilla been a Saudi citizen (or even English or any other nationality other than American), I would not be as concerned by his detainment. But the fact that he is American makes a difference in my mind. His citizenship, and the accompanying constitutional rights, has to stand for something.

In a recent op-ed piece in the Washington Times, Michael Billokargues that the President has the authority to detain US citizens as “enemy combatants”, based upon the President’s constitutional powers as Commander-in-Chief. Perhaps this is the case. I have not fully analyzed the precedent for this reputed power (but plan to do so and post more in the future). I realize that Lincoln suspended habeas corpus in 1861 and in 1862 and that our government interred Japanese-Americans (based solely on their ethnicity) during World War II.

Billok addresses whether the President can designate an American as an “enemy combatant”, but he doesn’t address whether the President should use this authority (assuming arguendo that the power exists). I think the second question is just as important. Fighting any war (and we are at war) requires the support and confidence of the people. Most citizens, myself included, are willing to give the President great leeway in using the necessary means to complete the difficult job of defeating the terrorists. But, we have a history of skepticism of government in this country because we know that government officials have in the past taken advantage of the peoples’ trust. This is my fear in the Padilla case.

I do not underestimate the strength and tactics of our enemies. However, at the same time, I believe strongly that the President needs to explain to the American people why Padilla cannot be tried for his crimes in our criminal courts. It is not enough to say that “this is a matter of war, not law enforcement”. That may be the case, but platitudes alone do not suffice. After all, we are currently trying Zacarias Moussaoui, the alleged 20th hijacker, who is not an American citizen. So, we need and should be given a better explanation.

Maybe the President has this authority, but he should use it sparingly and with great respect. To paraphrase Chris Rock, just because you can drive a car with your feet don’t make it a good idea.

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