Setback for Ashcroft's Radical Agenda

Yesterday's 2nd Circuit federal appeals court ruling in Manhattan, rejecting President Bush's detention of American citizen Jose Padilla without charges or counsel as an "enemy combatant," underscores the stunningly radical nature of Bush's post-9/11 assault on civil liberties.

In the ruling -- which the government is likely to appeal either to the full circuit court or directly to the U.S. Supreme Court -- the opinions of both the two-judge majority, Judges Barrington D. Parker Jr. and Rosemary S. Pooler, and the dissenting judge, Richard C. Wesley, showed clearly the fundamental constitutional matters raised by the White House attempt to claim authority to imprison citizens like Padilla without charges.

Padilla has been held for 18 months incommunicado in a military brig in Charleston, S.C. He was arrested -- to great media fanfare -- in a plot U.S. Attorney General John Ashcroft first triumphantly exposed as a well-developed Al-Qaeda plan to detonate a so-called "dirty" nuclear bomb in the heart of... uh...

Somewhere. It turns out there wasn't all that much evidence, at least much that's known publicly, other than that Padilla is a long-time Chicago area gang member, converted Muslim, and that he traveled extensively in the Middle East. Whether that made him a terrorist, an Al-Qaeda wannabe, a mid-level drug runner, or religious tourist is anyone's guess, since no court has been allowed to decide.

And that's the point.

Constitutionally, the questions in Padilla's case are very roughly twofold: first, whether the President's rights, as Commander-in-Chief of the armed forces, supercede those of Congress, which has authority to determine issues of due process; and secondly, when military matters involve a threat to national security on U.S. soil itself, whether a declaration of war or war making authority -- such as that Congress gave Bush after 9-11 -- is enough to give Bush the latitude to, for example, suspend basic constitutional rights.

Wesley, the court panel dissenter, claimed that it was -- but also noted pointedly in his opinion that "There is no well-traveled road delineating the respective constitutional powers and limitations in this regard."

For that reason, the case of Padilla -- as well as other fundamental shifts in authority embodied in post-9/11 Bush policies like the establishment of military tribunals and the detention of prisoners at Guantanamo Bay -- are likely to wind up resolved by the U.S. Supreme Court. The lack of other serious cases against suspected terrorists, either as part of or after 9/11, underscores both the over-hyping of such threats embodied in "dirty bomb" and various color-coded White House terror warnings, and the use of these few existing cases primarily to try to establish precedents for future use.

Even while Padilla's case winds upwards through the courts, the sharp erosion of civil liberties begun while Manhattan still smoldered has continued. When a proposed draft "PATRIOT II" Act was leaked and provoked enormous public outcry early this year, one of its major provisions was instead quietly attached as a rider to an intelligence appropriations bill last month. By simply redefining virtually any exchange of money in a cash economy as a "financial institution," Congress has now given the government the right to search records of almost any private business or organization without either a warrant or judicial oversight -- the sort of blatant disregard for constitutional "search and seizure" protections that also ought to wind up in the Supreme Court.

One of the other components of the previous draft PATRIOT II would have allowed the government to strip persons, accused by the Commander-in-Chief of being enemies, of U.S. citizenship -- again raising the possibility of a two-step indefinite detention as an "enemy combatant" of someone like Padilla, even if his current case succeeds.