Treason against the United States shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort ...
The facts are not materially in dispute: Jose Padilla is a U.S. citizen. In February 2000, while traveling in the Mideast, he voluntarily signed on with the terrorist organization known as al-Qaida. Two years later, after training in Afghanistan and Pakistan, he was ordered to await assignments in Chicago.
On May 8, 2002, he flew to Chicago's O'Hare Airport. There he was arrested as a material witness to the bombings of 9/11/01. The FBI flew him to New York City and held him for a month in a civilian jail. On June 9, President Bush formally designated him an "enemy combatant" and whisked him off to the naval brig in Charleston, S.C. He has been there ever since. He has yet to be criminally charged or formally indicted.
This is the situation: In his role as commander in chief, President Bush personally charges (1) that citizen Padilla is closely associated with al-Qaida; (2) that he has engaged in hostile and warlike acts to cause injury to the United States; (3) that he possesses intelligence about al-Qaida that could aid the United States in preventing attacks; and (4) that he represents a continuing, present and grave danger to the national security of the United States. If this be treason, let us make the most of it.
During Padilla's month in New York in 2002, court-appointed counsel filed a petition for a writ of habeas corpus on his behalf. A U.S. district judge ordered the government to file criminal charges or let him go. Before the judge's order could be acted upon, the U.S. Supreme Court ruled 5-4 that Padilla's case should be heard in South Carolina instead of New York. Chief Justice William Rehnquist, writing for the majority, refused to reach the merits of Padilla's plea.
Inspired by the pending congressional elections, Justice John Paul Stevens filed an impassioned dissent. The case, he said, "raises questions of profound importance." The government's indefinite imprisonment of a citizen without evidence, indictment or trial, presents "a unique and unprecedented threat to the freedom of every American citizen."
"At stake in this case," he continued, "is nothing less than the essence of a free society. Even more important than the method of electing the people's rulers and their successors is the character of the constraints imposed on the executive by the rule of law. Unconstrained executive detention for the purpose of preventing subversive activity is a hallmark of the Star Chamber. ... If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
Encouraged by Stevens' eruption, lawyers for the prisoner filed for habeas corpus in South Carolina. They won a judgment in U.S. District Court but lost two months ago when a panel of the U.S. 4th Circuit supported the president's action all the way. Judge Michael Luttig held that Padilla "unquestionably qualifies as an 'enemy combatant,'" e.g., Padilla associated with the military arm of al-Qaida. He entered the United States bent on committing hostile acts. He thus qualified under Ex Parte Quirin (1942) as an enemy belligerent.
The Quirin case involved eight German saboteurs who landed by Nazi submarines in Long Island and Ponte Vedra Beach, Fla., in June 1942. They were captured almost immediately, quickly tried by a military commission, and sentenced to death as spies. Chief Justice Harlan Stone justified their prosecution in a long opinion filed four months later. He commented at the outset upon "the duty which rests upon the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty."
The difference between Jose Padilla in 2002 and the Nazi spies of 1942 is plainly that the spies were incapable of committing treason against the United States. They were citizens of Germany and combatants whose allegiance was owed to the Third Reich. Padilla enjoys no such exemption. He literally took up arms against his own country -- or at least that is the government's charge. The charge, in sum, is treason.
Padilla is entitled, precisely because he is a U.S. citizen, to all the constitutional protections that go with a speedy and public trial: an impartial jury, witnesses in his behalf and the assistance of counsel. If the evidence against Padilla is as strong as the president says, let us get on with an indictment and trial.
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