Let’s see, if I smear someone’s good name, does that entitled me to also lock him up in a military facility, cut him off from his family and friends, deny him all his Constitutional rights and throw the key away? Well, if you’re George W. Bush, Jr., and your day job is president of the U.S. and your top legal advisor is a guy by the name of John Ashcroft, it seems you CAN! In fact, this is exactly what happened in the case of Jose Padilla, an American citizen.

In May, 2002, Padilla, a convert to Islam, was in Pakistan. When he returned home to Chicago, he was arrested at the O’Hare airport and held on a “material witness” warrant for a grand jury probe that was investigating a “dirty bomb” plot by al-Qaeda. With that legal status, Padilla had a right to counsel, to seek bail at a prompt hearing and a right to challenge the propriety of his detention via any criminal law proceeding.

But, that was all a little bit too much “rights” stuff to suit our boy-oh, “Wild West George.” Bush decided, without any legal authority or a factual basis, to designate Padilla as a “enemy combatant.” This is just a term Bush and Ashcroft made up! Padilla was never anywhere near any battle zones in the Middle East. Bush’s arbitrary “designation” put the defendant in a Kafkaesque legal hell, where he could be held by the military, (read Donald Rumsfeld), without any chance for bail or counsel, no legal rights at all, and with little hope of Constitutional relief or judicial review. Welcome to the “Bush-Ashcroft-Rumsfeld Gulag!”

Fortunately, the 2nd Circuit Court of Appeals, which sits in NYC, reminded Bush that the highest authority in the land is the Constitution and that he has an obligation to obey it. In a Habeas Corpus proceeding, an ancient legal remedy that tests the authority of the government to hold someone in prison, the Court ordered Padilla to be released within “30 days,” unless the administration decides to bring criminal charges against him. If it does, Padilla is then to be removed to the jurisdiction of civilian authorities.

Bush, et. al. should have studied their early American legal history. The great Chief Justice John Marshall of the Supreme Court made it crystal clear, in “McCulloch v. Maryland” (1819), that America is a Republic. He underscored that the government created by the U.S. Constitution is “emphatically, and truly, a government of the people,” and that the Constitution “emanates from them,” and that “the powers are granted by them, and are to be exercised on them, and for their benefit.”

Bush, like all elected office holders, is simply a trustee of his position. That office doesn’t personally belong to him. It belongs to all of the American people. He lives in “our” house - - the White House. Presidents come and presidents go, but the Republic itself always remains (See, “US vs. Richard Nixon,” 1974). Bush holds office, with the highest kind of legal and fiduciary duty owed by him to maintain, at all costs, the Republic, and, further, under Art. II, Sec. III of the Constitution, “to take care that the laws be faithfully executed.”

The Constitution wisely spreads the bestowed power into three separate and distinct branches: the Executive, the Judicial and the Legislative. Each is then suppose to be a check and balance on the other. What the arrogant Bush did in the Padilla case was to unlawfully seize the authority of the other two branches, the Legislative and Judicial, unto himself. In effect, he became Padilla’s judge, jury and sheriff! Come to think of it, he unlawfully usurped Congress’s power “to declare war,” Art. I, Sec. VIII (11), when on March 20, 2003, he ordered the illegal invasion of Iraq. The evidence shows that Bush is a serial offender of the U.S. Constitution.

In any event, if Bush ultimately gets away with shredding Padilla's Constitutional rights, what is to keep him from exercising such tyrannical power against any other citizen of our Republic? The decision in Padilla's case was a 2 to 1 verdict from a panel of judges. If Ashcroft appeals it, then all the appellant judges of the 2nd Circuit will decide the matter. Eventually, it will probably end up going to the Supreme Court for a definitive ruling.

Meanwhile, the 9th Circuit Court of Appeals, headquartered in California, gave the administration another slashing rebuke. By a 2-1 panel decision, the Court blasted the Bush-Ashcroft Gang for detaining 660 POWs, without charges or trial, at the Guantanamo, Cuba, naval base. The POWs were captured in Afghanistan and Pakistan. Judge Stephen Reinhardt, speaking for the panel’s majority, said, “Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch (read Bush and Ashcroft) from running roughshod over the rights of citizens and aliens alike...We cannot simply accept (Bush’s royal-sounding decree) that he has the unchecked authority to imprison, indefinitely, any persons...without permitting...recourse of any kind to any judicial forum, or even access to counsel.”

The 9th Circuit also gave Bush’s clique a legal black eye, in another important case: for indicting defendants, under a 1996 federal anti-terrorism law. That dubious scheme criminalized an individual for giving so called “material support” to “foreign terror groups,” that had been targeted as such by a bureaucrat in the State Department. The Court held those portions of the law as being “void for vagueness.” It added that the government must prove “beyond any reasonable doubt” that a donor to such a selected group knew of “its unlawful activities.” This law was pushed in the Congress by Sen. Arlen “Magic Bullet” Specter (R-PA), and then House member, Sen. Charles “The Windbag” Schumer (D-NY).

Finally, it was a bad week for the administration, vis-a-vis an independent Judiciary. Keep in mind, however, that there are other cases presently moving up through the legal system, which strongly reflect the rights-bashing, oppressive, the-Republic-be-damned views of the Bush-Ashcroft Gang (Ccr-ny.org).

© William Hughes 2003

William Hughes is the author of “Saying ‘No’ to the War Party” (Iuniverse, Inc.). He can be reached at: liamhughes-AT-mindspring.com.