You Have Rights -- if Bush Says You Do
This week, the U.S. Justice Department held an extraordinary news conference. After insisting for two years that details of the case of Jose Padilla, an American citizen accused of being an “enemy combatant,” had to be kept secret even from the federal courts, the Justice Department suddenly released detailed information on his interrogations and their results. What made this press conference particularly notable was its intended audience: the U.S. Supreme Court.
The court is currently reviewing the Padilla case, with a decision expected in the next few weeks, and there is a growing question of whether a majority can be found to support President Bush’s claims of absolute authority to hold a U.S. citizen indefinitely without filing charges.
It is, of course, considered highly improper to stage such a news conference while a case is pending. Indeed, such a stunt is likely to outrage some members of the court. But the administration appeared to be playing for the one swing justice: Sandra Day O’Connor, who, during the arguments in April, was openly struggling to find any plausible rationale for giving a president absolute power over citizens. With the record now closed, the only realistic chance of getting such information to O’Connor was her morning newspaper.
Padilla has been held for two years without access to the courts or even a lawyer. The high court is also working on opinions in two other terrorism-related cases, which involve another enemy-combatant suspect, Yaser Esam Hamdi, and the detainees at Guantanamo Bay. These cases have become a game of three-card monte, with Atty. Gen. John Ashcroft barring any public view while occasionally revealing a card in order to keep up the public’s interest or faith in the game.
The government disclosures this week were not compelled by any court, statute or deadline. It was purely a political decision that the president would benefit by selectively releasing incriminating statements allegedly made by a citizen held incommunicado.
In alleging that Padilla had planned to target apartment buildings and hotels, Deputy U.S. Atty. Gen. James Comey Jr. said the administration wanted to show that there were benefits to stripping citizens like Padilla of their rights. (This is, of course, a far cry from the charge made at the press conference held by Ashcroft after Padilla’s arrest in which the attorney general claimed that he had thwarted a conspiracy to explode a “dirty” radioactive bomb in New York or Washington -- a claim later publicly retracted by the White House.)
When asked about the suspicious timing of the news conference after two years of claiming absolute secrecy, Comey denied that the Justice Department was trying to influence the Supreme Court, instead saying it was merely trying to influence “the court of public opinion.”
In a moment of extraordinary and chilling honesty, Comey explained that Padilla had to be stripped of his civil liberties because, if he used them (including his right to remain silent or his right to a lawyer), he might have been able to win his freedom. Thus, the government had to keep him away from lawyers and judges at all costs. Gone was the pretense of legality or principle. The Justice Department had finally found its natural moral resting point: Civil liberties are tolerated only to the extent that they will not interfere with the government’s actions. Meanwhile, Zacarias Moussaoui, a foreign citizen accused of terrorism, was presumably given his rights in federal court because, given the case against him, the government thought those rights would do him little good.
The administration seems to believe that the public and O’Connor will not worry about others’ rights when they are contemplating their own demise from terrorist attacks. It might be right. When Comey described Padilla in absentia as some terrorist barking out confessions, no one seemed to mind that the Justice Department had turned a U.S. citizen into a presidential plaything to be manipulated for short-term political gain. The message was clear: If we don’t strip some citizens of their rights, your apartment building might collapse.
There is something far more unsettling in this scene than an administration openly playing to the Supreme Court. It was a reminder that we are morally adrift, abandoning legal principle for the proceeds of arbitrary power.
We have lost that moral distinction between ourselves and our enemies if we believe that our success is measured by the confessions that we coerce rather than the civil liberties that we defend. We are left with the one question not asked at the press conference: Once the president declares victory over our enemies, what will we be other than victorious?
Jonathan Turley is a law professor at George Washington University.