Mike Whitney: Jose Padilla and the Death of Liberty

Via Richard K. Moore.

I had to sit down when I heard the Padilla case had been settled. I literally felt sick to my stomach, like I was gasping for air. The case of Jose Padilla is quite simply the most important case in the history of the American judicial system. Hanging in the balance are all the fundamental principles of American jurisprudence including habeas corpus, due process and "the presumption of innocence". All of those basic concepts were summarily revoked by the 3 judge panel of the 4th Circuit Court. The Court ruled in favor of the Bush administration which claimed that it had the right to indefinitely imprison an American citizen without charging him with a crime. The resulting verdict confers absolute authority on the President to incarcerate American citizens without charge and without any legal means for the accused to challenge the terms of his detention. It is the end of "inalienable rights", the end of The Bill of Rights, and the end of any meaningful notion of personal liberty....

Padilla became the test-case for shattering the Bill of Rights with one withering blow. It has succeeded beyond anyone's wildest expectation.

There's no chance that the Supreme Court will retry the case and draw more attention to the shocking details of this judicial-coup; they already punted once before preferring to pass it along to the lower court. Rather, the meaning of the case will be ignored until the president needs to exercise the newly-bestowed powers of supreme leader. That authority is now firmly rooted in the legal precedent established by the Padilla ruling....

Americans seem unaware of the great loss we've all suffered by the Padilla verdict. If the President is allowed to arbitrarily decide who has "inalienable rights", than those rights become the provisional gifts of the government rather than a reliable shield against the abuse of state power. It means that every American citizen is as vulnerable to the same violation of human rights as the men currently imprisoned in Guantanamo Bay. It also means that the legal wall that shelters the citizen from the random violence of the political establishment has been reduced to rubble.

I wonder what those enemies of "judicial activism" and "legislating from the bench" at the Federalist Society think of this.

Ironically, Whitney uses a quote from Scalia (who refused to hear the case) as his epigraph:

"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."