Public Enemy No. 43,527.

The law, lawyers, and the court.
Nov. 23 2005 4:21 PM

Public Enemy No. 43,527

The government throws back another small fish.

We've got bigger fish to, er, fry. Click image to expand.
We've got bigger fish to, er, fry

Poor Jose Padilla. When the Defense Department decided to release America's last Public Enemy No. 1—Yaser Esam Hamdi—from nearly three years of bondage in a military dungeon without charges, he was shipped off to Saudi Arabia, with a firm handshake and commemorative U.S. Navy mug. The terrorist too dangerous to be tried in open court was sent home to his parents for a seriously enforced new bedtime. But Padilla—perhaps because he grew up in America, or maybe because his name could be readily stapled onto another conspiracy case—faces criminal charges and a lifetime in prison.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Padilla is not, nor was he ever, a central figure in the war on terror. The Brooklyn-born former gang member who converted to Islam has sequentially been demoted from the "Dirty Bomber" to the "Apartment Bomber" to "Random Bad Fella." And thus he joins Hamdi, Zacarias Moussaoui, John Walker Lindh, and most of the other big terror suspects we've convicted, or incarcerated without charges, as walk-ons repurposed to be special guest villains in the legal war on terror.

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Padilla was detained at Chicago's O'Hare airport on May 8, 2002, and held as a "material witness" in New York. Facing a legal deadline to defend its decision to hold him as a material witness indefinitely, the government hastily labeled Padilla an enemy combatant and hustled him off to a military brig in Charleston, S.C. Authorities determined that he had no legal rights—no right to counsel or to be charged with a crime. And then the speechifying began:

"This guy, Padilla, is a bad guy," President Bush announced at the time. "And he is where he needs to be—detained." Then-Attorney General John Ashcroft bragged: "We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States." In the face of this evil, the Bush administration triumphantly threw away the key. Until it was faced with another deadline in the winter of 2004, when Padilla's lawyers were about to challenge his detention at the Supreme Court, and suddenly his overdue right to a lawyer materialized. Then in June 2004, as the court considered the case, the government released a document detailing the alleged plan in which Padilla was involved—a plan to blow up American apartment buildings. Big downgrade from dirty bombing. But still scary.

The Supreme Court refused to rule on the merits of Padilla's claims in 2004, throwing his case back to the lower courts on a technical matter. But the court did rule in Hamdi's case, voting 8-1 that American "enemy combatants" captured in the war on terror are entitled to challenge indefinite detentions in federal court. As Lyle Denniston has explained, while normal sentient humans might have read this ruling as something of a loss for the Bush administration, the government continued to hold Padilla, claiming it had prevailed in Hamdi and the other terrorist suspect cases and giving no ground on its position that the Guantanamo detainees have no rights in federal court. This week, the government faced another deadline: In response to Padilla's second appeal to the Supreme Court, the Bush administration would have had to advance its losing argument in favor of unfettered executive power. And magically Padilla is transferred—doubtless blinking gratefully—into the bright hopeful light of a protracted criminal trial.

The Bush administration can pretend this timing is mere serendipity and that the "real" charges against Padilla—the dirty, rotten apartment-bombing charges—are not in the indictment for national security reasons. But the truth is that the government oversold Padilla the same way it oversold Hamdi, Moussaoui, Lindh, and the Detroit and Lackawanna "terrorists." The government caught street hooligans and passed them off as gang lords.

Nobody disputes that small-fry terrorists must be caught and punished. After all, most of the Sept. 11 murderers were small fish with no real grasp of the big plan. Nor does anyone dispute that these terrorists should be questioned by the state if they can help foil big terrorist plots. But most Americans now dispute—and some have long disputed—that all this needs to be done outside the existing legal stratosphere. More than three years after the government began holding citizens in jails without charges, there is no proof that anyone in this country is safer for it. Nor is there any proof that ordinary criminal trials for Padilla, Hamdi, and the other terrorists we've tagged would have exposed vital intelligence information or resulted in acquittals. Yet with Hamdi sent home, and Padilla shuffled to the criminal courts, there may be no testing the addled theory that President Bush has boundless wartime powers, even after the Supreme Court has told him he doesn't.

Had Padilla been charged and tried back in the summer of 2002, rather than touted as some Bond villain—the Prince of Radiological Dispersion—his case would have stood for a simple legal proposition: that if you are a terrorist, a supporter of terrorism, or a would-be terrorist, the government will hunt you down and punish you. Had the government waited, tested its facts, kept expectations low, then delivered a series of convictions of even small-time al-Qaida foot soldiers, we in this country would feel safer and we would doubtless be safer. Instead Padilla, like Hamdi, was used as fodder for big speeches. They became the justification for Bush's position that some people are so evil that the law does not deter them, that new legal systems must be invented—new systems that bear a striking resemblance to those discredited around the time of Torquemada.

The facts of the Hamdi, Padilla, Lindh, Moussaoui, and other terror cases have never mapped onto the propaganda used to sell them. The trouble, yet again, is those bedeviled facts. The problem the Bush administration keeps having with the legal system is that no matter how long you stall, speechify, and deny, in the end it all comes down to facts—facts that become increasingly inconvenient with every passing day.

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