Siddharth Varadarajan

Journalist | Writer | Analyst

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

5 comments on “The final levee has given way…

  1. Anonymous
    September 27, 2005

    Once again Saddith uses his hypocritical microscope to scoop up a small morsel of injustice against ONE American citizen by a ruling that WILL BE HEARD by the Supreme Court and almost certainly overturned.Meanwile, there are 250,000 (that’s a quater million) political prisoners in North Korea locked up in a gulag the size of Rhode Island. Does Saddith offer any condemnation for the policies of Kim Jong Il that have destroyed the lives of this staggering number of people? In response to recent violence against judges, Iran has just imprisoned over 2,000 of it’s citizens in their horrendous prison system that will never be heard from again or forced to sign confessions by the most brutal means imaginable.Okay ONE American gets a whole blog on Saddith’s site — THOUSANDS of unfortunate citizens of fascist regimes get NOTHING. I think that pretty much sums it up, folks. We know who we’re dealing with here.

  2. Roy Wolford
    September 20, 2005

    It is about time all countries wake up and realize that Bush and the United States are no longer in control. The people of The United States are no different than the people of the world. We are all being used because we place foxes in charge of our hen houses.Terms like Corporate America are now Foreign America because foreign countries continue to buy up all American Corporations. The people of the world are just numbers to manipulate for profit.We, the citizens of the world are being used in wars and conflicts to make those members of this foreign organization rich. As the poor die, the rich get richer.Now, like draining La. with an eyedropper, we comment amongst ourselves and accomplish nothing except confusion, because we too, fall for their instigated confusion.IWTNews must stay neutral. Do not use famous names because they are famous, Hollywood mentality does not know the meaning of a dollar.Liberalization of our laws has destroyed morality and provided lawyers with riches beyond reason. Hollywood politics leave the poor in the dust as they throw a few morsals to the poor.We poor may be the majority, but we have let the minority rule long enough.Now we have a medium to unite and will we use it? No, I think the liberals will prevail here too.Too many people reason like horses with blinders and can only see what is in front of them.

  3. dan in colonial canada
    September 18, 2005

    VIRTUALLY FOUR years to the day terrorists levelled the World Trade CenterI never got past the first lineI hope by terrorists you are refering to the someones in the capitalist government elite who will stop at nothing short of an even stronger grip on global capital and control.far too much coverup to consider that the us gov, at some level did not plan or at the very least make possible the destruction of the three world trade center buildings on sept 11 2001time to support the humanisticly minded americans with a regieme change.

  4. maverick
    September 11, 2005

    A bakers dozen of them are being force fed, by the US military through tubes…It doesnt take away the fact that there are more than 80 who still are on a month long hunger strike. Non violence and satyagraha have a world face.

  5. Therese
    September 10, 2005

    There is also a media blackout on the Guantanamo Bay prisoners hunger strike, which is now in its second week.

Leave a reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


This entry was posted on September 12, 2005 by in Uncategorized.



%d bloggers like this: