Hamdi, Padilla, al-Marri and the "American Taliban," John Walker Lindh

Reading Glenn Greenwald's, "Al-Marri and the power to imprison U.S. citizens without charges," reminded me of this column I wrote back on June 16, 2002:

"Enemy combatant" tag is administration end-run around the Constitution"

The Justice Department's June 13 announcement regarding American terrorist suspect Jose Padilla indicates that the Bush administration thinks it has finally found the formula to bypass the fundamental rights guaranteed every American citizen by the Constitution. But, the method to its madness and the repercussions of it, may be even more far-reaching than any of us dare to imagine.

Learning from the mistakes made with "American Taliban," John Walker Lindh, who is scheduled for a trial by jury in an Alexandria, Va., courtroom Aug. 26, the U.S. government will not attempt to bring Padilla before a military tribunal. Not exactly anyway.

Instead, President Bush, by the powers vested in the executive branch, has decided to classify Padilla as an "enemy combatant" and has had him transferred into military custody at a Navy brig in Charleston, S.C. There, according to Justice Department officials, he can be held indefinitely with neither charges nor trial, conceivably until the president decides the war against terrorism is over.

Upon what is the Justice Department and the administration basing those powers you ask? On a 1942 U.S. Supreme Court decision in the World War II case, Ex Parte Quirin. Quirin, a U.S. citizen, along with seven other Nazi saboteurs were landed by submarine on beaches on Long Island and Ponte Vedra Beach, Fla. The FBI arrested them all and handed them over to the military, which tried and subsequently executed them. The court held that they were "unlawful combatants" who had entered the country secretly like spies. Defending the right of the president (executive branch), "in time of war and of grave national danger," to order the eight to be tried by military tribunals, it stated: "All citizens of nations at war with the United States or who give obedience to or act under the direction of any such nation shall be subject to the law of war and to the jurisdiction of military tribunals."

According to government officials, Padilla fits all of the criteria of an enemy combatant because he allegedly met with a senior al-Qaida official, learned how to blow up a dirty bomb, received training and financing and then came to the United States with the intent to do harm. But the administration still must show evidence that he at least planned to do harm to the U.S.

Unlike U.S. citizen, John Walker Lindh, charged with conspiracy to kill Americans abroad and French citizen, Zacarias Moussaoui, charged with conspiring to carry out the Sept. 11 attacks, the government's evidence against Padilla may be a little weak. Hence this "enemy combatant" classification. Does anyone hear the strains of that "In the interest of national security" song being tuned up? What better way to hold him indefinitely.

Now normally, a U.S. citizen, would be afforded typical legal rights such as presumption of innocence, grand jury indictment, due process, legal representation - those pesky little things. However, Padilla's classification as an "enemy combatant," allows the government to interrogate him more aggressively, hold him indefinitely and reduces his legal rights to less than an ordinary civilian defendant in a criminal case.

Justice Department officials have magnanimously offered that he will have "limited" access to an attorney. We are certain to hear repeatedly about the delicate balance between the rights of one to justice versus the rights of many to security before this is all over. More frightening than the premise itself is the ease with which our government appears to be able to dispense with those basic, fundamental rights of one to justice merely by saying it should be so. We have seen many times - in South America, in Africa and Asia - where this dark and secretive path can lead.

If Padilla is guilty of treason or other acts of betrayal against the United States of America, give him a trial in a public court where Americans can see the strength of the government's case and know with certainty the acts of treachery committed. Only then will we truly know that justice has been done.

Pretty prescient in the context of Glenn's piece, I thought. The more I thought about it, the more I wondered if there'd be more rumblings from the legal team of the young, white, California-raised "American Taliban," John Walker Lindh to free their client. There are.

Seems a petition to Shrub for commutation is in the works. Never mind, once it became known that he was a U.S. citizen, he (unlike his decidedly darker-hued, more foreign-looking, Louisiana-born fellow citizen, Hamdi - captured at the same time, in the same place) received all the rights afforded Americans under the Constitution and was brought to Virginia to launch a defense for himself in the American criminal justice system, while Hamdi was declared an enemy combatant and sent to Gitmo. Never mind, he pled guilty to providing service to the Taliban and carrying explosives while doing so (other charges in the 10-count indictment against him, including conspiring to kill Americans and engaging in terrorism, were dropped by the government. A governmental strategy to keep the lid on our military's involvement in torture perhaps?).

Considering the fact that Shrub was almost forgiving back in 2001 when Lindh was captured, calling Lindh a "poor fellow" who had been "misled," I'll bet you a nickel, Lindh will be on his list of pardons as he sashays on out of the White House in 2009. If I'm wrong, I'll admit it and you get the nickel!