The final levee has given way...

As if the official ineptitude of the Bush administration in the aftermath of Katrina and the callousness of the Bush family were not enough to digest, a U.S. Federal appeals court has just ruled that President Bush has the right to lock up anyone, forever, without charge.

12 September 2005
The Hindu

America bids farewell to the rule of law

Siddharth Varadarajan

VIRTUALLY FOUR years to the day terrorists levelled the World Trade Center, a federal court in the United States has delivered another shocking body blow to the edifice of civil society in that country. In a unanimous verdict on Friday, the U.S. Fourth Circuit Court of Appeals has upheld as legal one of the most controversial weapons the Bush administration has armed itself with in its "global war on terror": the power to incarcerate anybody — including U.S. citizens — indefinitely, without charge. The ruling was made in the case of Jose Padilla, a U.S. citizen who has been kept in a military detention centre in South Carolina since May 2002. Mr. Padilla is accused of being a member of Al-Qaeda and of conspiring to explode a "dirty bomb" inside the U.S. The administration, however, refuses to charge him or test the veracity of its allegations in a court of law, claiming instead that it has the right to hold him indefinitely in the interests of national security.

The Court of Appeal has now upheld that claim, ruling that the U.S. Congress — in passing a joint resolution soon after 9/11 for "Authorisation for Use of Military Force" — had "provided the President all powers necessary and appropriate to protect American citizens from terrorist acts." Those powers "include the power to detain identified and committed enemies such as Padilla, who [was] associated with Al-Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and who entered the U.S. for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil...," the court said.

What this means is that unless the Supreme Court overturns this verdict, Mr. Padilla — like the non-U.S. prisoners at Guantanamo — will remain in legal limbo. And since the war on terror has been described by U.S. officials as "an endless war," the period of incarceration could also be endless. Indeed, the U.S. administration is now at liberty to invoke the power of indefinite detention against anyone it likes, since the Appeal Court considered the exercise of presidential powers to be unconstrained by any consideration about the authenticity of allegations levelled against an individual to be detained.

While the American Civil Liberties Union (ACLU) bravely insists the judgment "does not authorise the government to designate and detain as an `enemy combatant' anyone who it claims is associated with Al-Qaeda or other terrorist groups," the bitter truth is that neither national or international legal covenants and jurisdictions or the possession of U.S. citizenship will protect individuals from being deprived of their liberty if the administration decides they are a threat to U.S. national security. Once the President decides to lock someone up in the name of national security, no Bill of Rights and no court can stand in the way.

The legitimisation of this extraordinary power is precisely what the Italian scholar, Giorgio Agamben, means when he says the `state of exception' — which in `democratic' countries is meant to be a `provisional measure' — has become a normal, routine, paradigmatic form of rule. In his State of Exception, published in 2004, Mr. Agamben writes: "President Bush's decision to refer to himself constantly as the `Commander in Chief of the Army' after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war... becomes impossible." (Translated by Kevin Attell).

In designating Mr. Padilla an `enemy combatant,' President Bush invoked his authority as Commander-in-Chief of the armed forces and instructed Defence Secretary Donald Rumsfeld to detain him indefinitely. In his Writ of Habeas Corpus , filed on July 2, 2004, Mr. Padilla said he disputed this designation — and the allegations on which it was based — and wanted to be able to go to trial so that the true factual position could be established:

"Padilla is not an `enemy combatant'," his writ stated. "He has never joined a
foreign army and was not arrested on a foreign battlefield. He was arrested in a
civilian setting within the United States. Padilla carried no weapons or
explosives when he was arrested. He disputes the factual allegations underlying
the Government's designation of him as an `enemy combatant'."

So confident were Mr. Padilla's lawyers of their client's right to due process — and so pressing the urgency for a legal remedy since he had already been in detention for more than two years — that last October they filed a motion for summary judgment arguing that he was "entitled to judgment as a matter of law even if all of the facts pleaded [in the Government's allegations] are assumed to be true."

That confidence proved well-founded when a district court in South Carolina on February 28, 2005 granted the summary judgment motion and habeas petition and ordered that Mr. Padilla either be released or charged with a crime. The Bush administration went on appeal and has now won. The September 9 judgment was written by Judge J. Michael Luttig on behalf of a three-judge bench. Described in 2001 by CNN as "a rising star among conservatives", Judge Luttig is one of several judges in the running for a U.S. Supreme Court slot.

Chilling logic

The Appeal court essentially relied upon the recent U.S. Supreme Court ruling in the Hamdi case (involving another U.S. citizen alleged to be a member of Al-Qaeda) and the Quirin precedent, involving the case of German saboteurs who entered the U.S. during the Second World War and were detained as enemy combatants.

However, it rejected Mr. Padilla's argument that if Quirin were to apply, then he should be given the benefit of a trial as one of the defendants in that case, Haupt, also a U.S. citizen, had been.

The court said the "availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorised in the first place — the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee... "

Implicit in this logic is the possibility that a criminal prosecution might not go in the Government's favour if the original allegations — which the appeal court assumed to be correct — turn out to be false. One would have thought the very possibility that the Government's evidence against Mr. Padilla is infirm is reason enough to insist on a trial. However, in declaring that a man detained by Presidential order has no right to challenge his detention, the court is essentially saying a detainee should not be put on trial if a court is likely to find that he is innocent and that this "may well not achieve the very purpose for which detention is authorized in the first place."

In other words, Judge Luttig and his colleagues have legitimised preventive detention without a time limit and without the need to demonstrate either necessity or proportionality.

President Bush has declared a war against a faceless, stateless enemy, and the power to detain `enemy combatants' is paramount, not the right of a citizen to contest the basis of his detention.

© Copyright 2000 - 2005 The Hindu