[Mb-civic] SHOULD READ: Padilla case tests the Patriot Act - Thomas Oliphant - Boston Globe

[William Swiggard]

Padilla case tests the Patriot Act

By Thomas Oliphant, Globe Columnist  |  November 24, 2005

WASHINGTON
THE GOVERNMENT'S 11th-hour decision to dump the ridiculous case of 
accused ''dirty bomber" Jose Padilla on the criminal court to which it 
should have been referred nearly four years ago is Exhibit A against the 
Patriot Act as currently written.

The Padilla case is justification for the need for supervision, 
oversight, and judicial examination of how the government uses 
extraordinary powers in extraordinary times. Precisely because terrorism 
is an elusive and therefore especially dangerous enemy, it is doubly 
important that the government behave responsibly and that its actions 
receive scrutiny.

Before the rudderless, dysfunctional Congress limped out of town last 
week, this was the principle behind what would have been a filibuster 
against an extension of the Patriot Act's major provisions. From the 
left and right -- uniting senators as diverse as Idaho's Larry Craig and 
Wisconsin's Russ Feingold -- the purpose of the filibuster would have 
been to review at least a few provisions, affecting individual rights 
and freedom, of the law that was enacted in such unseemly haste in the 
aftermath of the 9/11 attacks.

There's still a chance of success when Congress returns, and the Padilla 
case is a wonderful example of why supervision is always a good idea 
where the power of the state is involved.

The Bush administration dumped the case it once trumpeted rather than 
face Padilla's diligent attorneys before the Supreme Court on a basic 
question, which they framed with commendable precision: ''Does the 
president have the power to seize American citizens in civilian settings 
on American soil and subject them to indefinite military detention 
without criminal charge or trial?"

The administration was facing a Monday deadline for making its own legal 
case to the court for the extreme proposition that any American could be 
held merely on its say so that the person was ''an enemy combatant" in 
an undeclared war.

To add outrage to a constitutional question with enormous implications, 
politics has polluted this matter from the instant Padilla was seized 
upon arrival at Chicago's O'Hare Airport in the spring of 2002, when 
terrorism fears were still easily inflamed. In a grotesque misuse of his 
office, then-attorney general John Ashcroft had taken time out during a 
Moscow visit to hold one of those theatrical press conferences for which 
he became infamous, designed to portray the apparent Islamist radical as 
evil incarnate. Ashcroft and his aides did this via one phrase -- dirty 
bomb -- that suggested the apprehension of someone intent on exploding a 
device with nuclear components capable of causing mass death.

As an alleged enemy combatant by executive fiat, Padilla was whisked 
away to military detention, and the government vigorously fought efforts 
to get him legal representation or to have his case heard in public by a 
judge. Technically, its argument was that any American could be held in 
secret and without legal proceedings simply on the unexamined word of a 
government official that he was ''the enemy."

As has happened before, however, the Bush people blinked as the prospect 
of a court hearing became more likely. In secret over the weekend, 
Padilla was transferred to Justice Department control. Now he is charged 
with working overseas with extremists over the last dozen years to 
support terrorism. He could still get life in prison if convicted.

Nevertheless, despite all that Ashcroft hyperbole, administration 
officials are now blithely claiming that the evidence for a specific 
''dirty bomb" conspiracy was not worthy of consideration by a trial 
court after all. The rest of us are supposed to accept its explanation 
and move on.

Instead, the fitting punishment should be some rewriting of the Patriot 
Act. Once again, the Bush people are arguing that investigations that 
resemble fishing expeditions should be tolerated without oversight, 
judicial or otherwise. The administration wants unfettered power to go 
after records held by institutions (like hospitals and libraries) in 
pursuit of suspects or even simply for broader investigative purposes. 
More alarming, the administration wants unfettered power to send these 
institutions what are called National Security Letters, not only 
demanding personal information about citizens and illegal immigrants 
alike but also insisting that the fact the letters have been sent remain 
secret under penalty of prosecution.

In confirming a Washington Post story that some 30,000 of these letters 
have been dispatched since 9/11, officials are unable to cite a single 
case that justified such a broad dragnet.

The idea that this kind of behavior in a democracy should require some 
showing to an impartial party of some reason to suspect something is 
hardly far-fetched and worthy of inclusion in the Patriot Act. It could 
be called the Padilla Amendment.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/11/24/padilla_case_tests_the_patriot_act/
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