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Friday, November 25, 2005

Setting The Boundaries

Clement Vallandigham, congressman and citizen of the United States, was deported for his views on the war and for expressing sympathy for the nation's enemies. There was no trial. No evidence was presented against him. His "trial" had been before a military tribunal. The year was 1863 and the war was the American Civil War. (link)

The treatment of Clement Vallandigham was wrong then; a similar treatment of Jose Padilla is just as wrong today. Padilla, as you may recall, is the Chicago gangbanger turned Islamist terrorist who plotted, allegedly, to set off a "dirty bomb" in a high-rise apartment building here in the USA. He was arrested three years ago but was never charged with any crime. He was finally this week charged with separate crimes having nothing to do with the original allegation.

The Wall Street Journal editorial staff seems disappointed that Padilla is to be given his day in court:
Padilla's indictment comes on the eve of a showdown over his case in the U.S. Supreme Court, which was getting ready to consider whether to hear Padilla's appeal of the Fourth Circuit decision. Monday was the deadline for the Administration to file its legal arguments. Now that Padilla has been indicted, the appeal is probably moot -- which is too bad. While the Bush Administration is right to use whatever legal tools it wishes to fight terrorists, we can't help but wonder if, in choosing not to take Padilla's case to the Supreme Court, it is missing a chance at a larger victory for executive war-fighting authority.

Most accounts of the Supreme Court's Hamdi decision focus on its ruling that an enemy combatant must be allowed to challenge his detention in court. But more fundamentally, the Court upheld the authority of the President to detain enemy combatants, including U.S. citizens. That's the key finding of Hamdi and, we suspect, it would have been the key finding of Padilla, had the High Court decided to hear it. But a Supreme Court ruling is something of a roll of the dice, and it's hard to fault the Administration for deciding to take another route. (
What I cannot lose sight of is the fact that Jose Padilla, like him or not, is a citizen of the United States. He deserves all the protections afforded the rest of us. The Journal emphasizes his being considered an enemy combatant and glosses over the fact that he, like the members of the editorial staff, is an American. This is how I can draw a distinction between Padilla and the terrorists being warehoused at Gitmo. The Islamists there are not protected by the Constitution. They are foreign combatants. Padilla is of us.

Abraham Lincoln, in justifying his suspension of the writ of habeas corpus during the Civil War, asked the question, ""Must I shoot a simpleminded soldier boy who deserts while I must not touch a hair of a wily agitator who induces him to desert?" (link) It seems to me he always had the ability to address the problem with "the agitator" legally, but took the more expedient route; he simply had southern sympathizers imprisoned.

Although the Constitution allows for the suspension of the writ of habeas corpus, circumstances, it seems to me, must be far more egregious before we allow any president to exercise that authority.