This op-ed originally appeared in the Hartford Courant,
June 20, 2002.
to Op-eds Online
by Jack M. Balkin
NEW HAVEN -- Jose Padilla, an American citizen, is now being held in
a military prison in South Carolina. He can't speak to counsel. He
has no rights that the Bush administration wishes to respect.
Padilla's case is further evidence that there is something deeply
troubling about this government's attitude toward the Constitution
and the rule of law.
For months, critics have worried about the administration's proposal
to employ military tribunals. But the greater danger to civil
liberties has always been lurking alongside. It is not secret trial
but indefinite detention: the danger that the attorney general or
some other government functionary will pick some face out of the
crowd and hold that person indefinitely without legal remedy.
The administration justifies its action on the ground that Padilla,
who has converted to Islam and now calls himself Abdullah al Muhajir,
is an unlawful combatant: someone who is secretly fighting against
our country without wearing a uniform or announcing his belligerent
status. If news reports are to be believed, Padilla is no choirboy.
But in our system of justice, even violent criminals are accorded
basic rights against the federal government: the right to have
accusations against them placed before a grand jury, the right to the
advice and assistance of counsel, the right to a speedy and public
trial by a jury of their peers and, above all, the right to judicial
review of the legality of their arrest, detention and trial. By
accusing Jose Padilla of conspiring with the al Qaeda terrorist
network, the administration has attempted to short-circuit all of
There is no doubt that identified enemy soldiers may be arrested and
detained by the military, although even then they are subject to the
protections afforded by international law to prisoners of war. The
question to be decided, however, is whether Jose Padilla is an enemy
soldier. One should not be able to strip away his constitutional
rights merely by throwing him in the brig. If the attorney general
can simply announce that a citizen is an enemy of the state and use
that accusation to hold him indefinitely, our Constitution is not
worth the paper it is written on.
Repeatedly, this administration has taken whatever steps it can to
avoid accountability, either to Congress or to the courts. It
justifies its actions not by giving us freedom from fear but by
spreading fear. It raises the specter of grave dangers to our
national security, from which it will save us if only we submit
ourselves willingly to its greater wisdom.
We have a right to be worried about future attacks. But we also have
the right to be worried about the slow and steady evisceration of
legal procedures designed to prevent governments from arbitrary
detention and arrest.
At first, one could argue that the Bush administration was interested
only in seeking rough justice overseas. Then one could comfort
oneself with the notion that only aliens overstaying their visas
would be targeted. But now it appears that even American citizens may
be rounded up on suspicion and placed in military prisons
indefinitely at the pleasure of the president.
There is only one word to describe this, and it is not democracy. It
Jack M. Balkin is Knight Professor of Constitutional Law at Yale Law
School. His latest book is What Brown vs. Board of Education
Should Have Said [2001, New York University Press].