A Swiss friend on his first visit to New York City some years ago happened on a shell game on a sidewalk on lower Broadway. After observing the game for a while, he was sure he could consistently say under which cup the ball was hidden. So he put down some dollars and started betting. He identified the ball correctly five times running, and kept increasing his bets. The sixth time, someone yelled “cops,” and the cups, the ball and my friend’s money were swiftly packed up and gone. Not subtle, but classic. Welcome to America.
After 9/11, the Bush Administration has adapted this con game, only instead of a ball, they’ve used José Padilla, the US citizen arrested at O’Hare Airport in May 2002, and instead of cups, they’ve used the military and criminal justice systems. But the end result is the same: The Administration has thus far succeeded in holding Padilla without charges or a hearing for more than three years, much of it in incommunicado detention. And its latest action–taking Padilla out of military custody and charging him in an ordinary criminal case–seems patently designed to keep hiding the ball, and thereby to keep alive the option (and threat) of holding US citizens arrested here as enemy combatants.
Padilla’s story is complicated, but the government’s strategy has been simple enough: Above all, avoid accountability. Upon his initial arrest, Padilla was held as a material witness in New York City. But when lawyers appointed to represent him challenged that detention in court, the government spirited Padilla away on the eve of the court hearing. Government lawyers then announced that the judge no longer had jurisdiction because George W. Bush had declared Padilla an “enemy combatant.”
When Padilla’s lawyers challenged this use of the enemy combatant authority to hold a US citizen arrested on domestic soil, far from any battlefield, the government argued that the lawyers were in the wrong court–they should have filed where the military was now holding Padilla, in South Carolina, a state that just happened to be within the jurisdiction of the Court of Appeals for the Fourth Circuit, the most conservative court in the land. In 2004 the Supreme Court narrowly agreed that suit should have been filed in South Carolina, and dismissed Padilla’s pending challenge on jurisdictional grounds. Vote-counters noted, however, that were Padilla to refile in the right court, it appeared that five members of the Supreme Court would rule that the government had no authority to hold him. Four Justices dissented in his case, stating that his detention was unlawful. And while Justice Antonin Scalia provided the fifth vote denying jurisdiction, his vote in the related case of Yaser Hamdi made clear that he did not think citizens could be held as enemy combatants short of Congress formally suspending the writ of habeas corpus.
But it takes time to get back to the Supreme Court. Padilla refiled in South Carolina, where he prevailed in the district court but lost in the Fourth Circuit. Now that his case is back before the Supreme Court, the Administration has again shifted tactics, returning Padilla to the criminal justice system and charging him with a bit part in a vague conspiracy to provide material support to unspecified terrorist acts before 9/11.
When Padilla’s arrest was first made public, then-Attorney General John Ashcroft held an extraordinary press conference from Russia to announce that the government had disrupted a plot to detonate a radiological “dirty bomb.” But those charges fizzled, and when the case was before the Supreme Court in 2004, the deputy attorney general held another press conference, announcing that they now had information that Padilla had been planning to rent an apartment, leave the gas on and ignite it.
But press conference allegations are easy. Now that Padilla has actually been indicted, he is not accused of dirty bombs, apartment fires or any violent act whatsoever. Instead, he is accused of playing a decidedly marginal role in a group that allegedly sought to provide support for unidentified terrorist acts abroad. No one in the conspiracy is accused of engaging in any violence, and Padilla’s role is so tangential that he is not even actually accused of providing material support to terrorists. Most of the case consists of fraud and perjury charges against the other defendants. The most interesting fact in the indictment is that one of Padilla’s aliases was “Abu Abdullah the Puerto Rican.”
What this means is that Padilla will never be charged, and never have his day in court, on the serious allegations bandied about in Justice Department press conferences. More important, the department will not have to defend its detention of him before the Supreme Court. The government has said that its latest moves render Padilla’s challenge to his military detention moot; the Court is likely to agree. That leaves untested the President’s power to hold any one of us, wherever we are arrested, in incommunicado military detention for an unlimited time. It leaves the government free to invoke that power against criminal defendants otherwise reluctant to plead guilty, or to hold the next José Padilla for at least the years it takes to seek Supreme Court review. Not subtle, but classic. Welcome to America, post-9/11.