In a case testing the Bush administration's crackdown on civil liberties in the wake of September 11, a host of prominent lawyers, former federal judges, and former federal officials are supporting a lawsuit against the administration's handling of the case of José Padilla.
Padilla, a U.S. citizen, was seized at Chicago's O'Hare airport in 2002 under suspicion of planning to detonate a radioactive “dirty bomb” as part of an Al Qaeda plot. Padilla was later declared an “enemy combatant” and moved from a prison to a military brig, where he has never been charged with a crime and has not been allowed contact with a lawyer or his family.
“[T]he Executive's position in this case threatens the basic rule of law on which our country is founded, the role of the federal judiciary and the separations in our national government, and fundamental individual liberties enshrined in our Constitution,” said a friend-of-the-court brief to the Second Circuit Court of Appeal. The brief was filed on July 30 by groups from across the political spectrum, including the Cato Institute, the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights (LCHR), People for the American Way, and the Rutherford Institute.
Their brief cited the fundamental constitutional right of habeas corpus, the right of an accused person to appear in a court to answer charges. Currently, no one but Padilla's captors knows what is happening to him.
Another friend-of-the-court brief, signed by such prominent lawyers as Harold Tyler, Jr., a longtime Republican and former deputy attorney general under President Gerald Ford, likened the administration's treatment of Padilla to the policies of totalitarian regimes.
Meanwhile, the Fourth Circuit Court of Appeals rejected an appeal on behalf of Yasser Hamdi, another U.S. citizen declared an enemy combatant. That decision has been appealed to the Supreme Court.
“The threat of being declared an enemy combatant is like a nuclear bomb,” said Kenneth Hurwitz, a staff attorney for LCHR. Because an enemy combatant has no constitutional rights, an accused person will plead guilty to any charge to avoid that status, undermining the entire criminal justice framework, he said.
Criticism of the Bush administration's handling of the war on terrorism is mounting. On October 10, the senior Red Cross official in Washington, DC, Christophe Girod, criticized the indefinite detention of over 600 prisoners at Guantanamo Bay, Cuba. The public statement was unusual for the Red Cross, which normally directs criticism privately to government officials, and came, Girod said, because the Bush administration had failed to take any action in response to Red Cross concerns.
In July, the American Civil Liberties Union (ACLU) asked a federal judge to declare unconstitutional the portion of the USA PATRIOT Act that allows the government to seize information and belongings secretly and without showing any probable cause that a crime has been committed. Also in July, the U.S. House of Representatives voted 309-118 to forbid certain funds from going to Justice Department agencies that use the provision of the PATRIOT Act that allows these “sneak-and-peek” search warrants. The measure was sponsored by an Idaho Republican.
As of October, three states (Alaska, Hawaii, and Vermont) and 190 cities, towns, and counties had passed resolutions or ordinances opposing the PATRIOT Act's infringement of civil liberties.
The Committee for Constitutional Rights has filed a class-action lawsuit on behalf of Muslims imprisoned and harshly treated by the federal government after the September 11 attacks.
In September, the ACLU filed a lawsuit against the Secret Service for violating the free speech rights of protestors during appearances by President Bush throughout the country. According to the suit, local police, acting at the direction of the Secret Service, moved people expressing views critical of the government far away from public officials and often out of public view, while allowing those with pro-government views to remain closer. The Bush administration has stated such measures are necessary for security.