June 2, 2003
Imprisoned Citizen Has Been Held Too Long
By Marina Sheriff
June 9 marks a troubling first anniversary. For one year, the United States government has been holding an American citizen in prison, incommunicado, without access to counsel, and no criminal charges filed against him.
For almost 365 days, Jose Padilla has been locked in a naval brig in Charleston, S.C., and interrogated while the Bush administration argues that he has no right to a see a lawyer or have a trial. The administration has used the attacks of Sept. 11, 2001, to claim essentially unchecked power to imprison anyone it considers a threat, with no opportunity to challenge the factual basis for that determination.
If you had asked me two years ago whether Padilla’s experience could happen here, I would have said no. I would have said that Americans might differ on many issues, but not on the fundamental concept that government cannot simply seize you and lock you up. I would have said that we learned our lesson from the shameful internment of Japanese-Americans during World War II, and that the concept of a right to a trial and a lawyer is too deeply engrained in the American psyche to be easily relinquished. Yet we are now suffering a yearlong siege against the basic principle that we can’t be deprived of our liberty without due process of law. It is past time to end it.
The administration accuses Padilla of associating with Al Qaeda and planning to detonate a radioactive “dirty bomb,” but denies him the protections guaranteed to criminal defendants, arguing that he is not formally charged with a crime. The government argues that he is an “enemy combatant” because the president said so, and he therefore may be detained under the laws of war. But there is no basis to conclude that Padilla is a “combatant” except the administration’s claim that he is: He was arrested in Chicago, far from any battlefield; he wore no uniform and carried no weapons. In essence, the administration has declared war not against a nation but against “terrorism,” and claimed the authority to incarcerate anyone it labels a combatant in that war.
Although the government asserts that it has intelligence indicating Padilla’s involvement in plans against the United States, its own affidavit concedes that “some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.” Still, the administration denies that Padilla has any right to contest that evidence, and is appealing a ruling that he be allowed to see his lawyer.
When I talk to people about Padilla, they often ask: “What did he do?” That’s a good question, but we cannot know the answer. The only question we can answer is “what does the government claim he did?”
What if the answer to the first question is “nothing”? What if Padilla, or anyone to whom this might happen, is innocent? Because that’s what this is about. We demand “due process” not to protect criminals and terrorists, but to determine whether or not the accused actually is a criminal or a terrorist. The government is not infallible, and “due process” is the only shield standing between the wrongly accused and government mistakes or misconduct.
There are certain basic principles from which we should never deviate. One such principle is that our government cannot deprive us of our liberty without due process of law. I still hope this principle will prevail, that the courts and the American people will stand up for our Constitution and demand that our rights are respected. But a year is too long. Padilla must have access to counsel and the opportunity to challenge the accusations against him. Every day he does not is an attack on our Constitution, our freedom and our commitment to justice and fairness. Sept. 11, 2001, changed a lot, but it cannot be allowed to change everything.
ABOUT THE AUTHOR
Marina Sheriff is a lawyer and policy analyst, and a consultant at the Brennan Center for Justice at New York University’s School of Law.
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