University of Pittsburgh JURIST Hotline, January 24, 2008
Paul Craig Roberts [former US Assistant Secretary of the Treasury; co-author (with Lawrence Stratton) of The Tyranny of Good Intentions]:
The George W. Bush administration responded to the 9/11 attack on the World Trade Center and Pentagon with an assault on US civil liberty that Bush and the DOJ justified in the name of "the war on terror." The government gave assurances that the draconian measures only apply to "terrorists." "Terrorist," however, was not defined. The government claimed the discretionary power to decide who is a "terrorist" without having to present evidence or charges in a court of law.
The Bush administration's policy comprises an end-run around any notion of procedural due process of law. Administration assurances that harsh treatment is reserved only for "terrorists" is meaningless when the threshold process for determining who is and who is not a "terrorist" depends on executive discretion that is not subject to review. Substantive rights are useless without the procedural rights to enforce them.
Jose Padilla, a US citizen, was accused of intending to set off a radioactive "dirty bomb" in an American city. He was denied due process and the protection of habeas corpus. He was held for years under harsh conditions that brought about "essentially the destruction of a human being's mind," according to Dr. Angela Hegarty, a psychiatrist who spent 22 hours examining Padilla.
Eventually, the courts intervened. In December 2003 an appellate court ruled that Padilla could not be denied habeas corpus protection. To forestall another Supreme Court ruling against the Bush administration, the administration withdrew Padilla's status as "enemy combatant" and filed criminal charges that bore no relationship to the administration's original allegations that Padilla intended to explode a "dirty bomb."
The only case the DOJ was able to manufacture against Padilla was that he was a "terrorist-wannabe." Padilla was thus indicted on the Benthamite grounds that he might commit a terrorist act in the future.
By the time Padilla went to trial, he had been demonized for years in the media as the "dirty bomb" terrorist. In the Washington Post, August 17, 2007, Peter Whoriskey described the Padilla jury as a patriotic jury that appeared in court with one row of jurors dressed in red, one in white, and one in blue. As Lawrence Stratton and I write in the new edition of The Tyranny of Good Intentions: "It was a jury primed to be psychologically and emotionally manipulated by federal prosecutors. No member of this jury was going to return home to accusations of letting off the 'dirty bomber.'"
The main "evidence" introduced against Padilla was an unrelated 10-year old video of Osama bin Laden, which served to arouse in jurors fear, anger, and disturbing memories of September 11.
The prosecutors also claimed to have a form that Padilla is alleged to have completed in 2000, prior to September 11, 2001, to attend an al Qaeda training camp in Afghanistan. At that time Al Qaeda and the Taliban were fighting against a remnant of the Northern Alliance containing elements of the old Soviet regime to unify Afghanistan as an Islamic state. Although it is far fetched that al Qaeda sent out applications to attend its training camps, any such application by Padilla predated the 9/11 attack and was related only to domestic affairs in Afghanistan. Any such application has no relevance to any act of terrorism.
Padilla was convicted on all counts. In handing down a 17-year sentence, US District Judge Marcia Cooke denied the prosecutors' request for a life sentence and observed: "There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere."
Under Blackstonian law, the basis of the US Constitution, the Padilla case has no crime and no intent to commit a crime. Judge Cooke vaguely recognized this, but US law has been pushed off its Blackstonian basis and is being reconstructed on a Benthamite basis.
Benthamite law is the great ally of tyranny. It permits people to be arrested on the suspicion that they might commit a crime in the future, to be tortured, and to be held indefinitely. In other words, suspicion leads to imprisonment without the check of warrant, judge, trial or jury.
This is the law that the Padilla case has given us. Padilla, an American citizen, was denied habeas corpus, tortured, and convicted of the Benthamite crime of being suspected of possibly committing a real crime in the future. The fact that judge and jury went along with the Benthamite proceeding shows that Benthamite justice can operate within the old Blackstonian process.
The Justice Department that manufactured the case against Padilla is the same DOJ that wrote memos justifying torture and findings that the President of the US need not obey federal statutes such as FISA or abide by the Geneva Conventions and the US Constitution. It is the same DOJ whose attorney general told Congress that the Constitution does not provide habeas corpus protection to every US citizen.
This same DOJ is the product of an administration the highest officers of which have been documented to have lied about Iraq 935 times in the two years following 9/11.
If the Bush administration will lie about matters of war and death and fabricate evidence to justify war, why won't the administration lie and fabricate evidence in order to convict accused "terrorists" like Padilla and whomever else they please?"
Harvey Silverglate has noted that the legal changes we have experienced since 9/11/2001 have destroyed the common law basis of US law. In terrorist cases, prosecutors do not need to fabricate evidence, because they can make crimes out of innocuous and even constitutionally protected activity. A case in point is the federal indictment of a Saudi graduate student at the University of Idaho who operated some Websites, a constitutionally-protected activity, where some participants in discussion groups advocated jihad. Applying a provision of the US PATRIOT Act, federal prosecutors indicted Omar Al-Hussayen for providing "expert advice or assistance" to terrorist organizations (see Silverglate, The Boston Globe, June 28, 2004). What prosecutors are doing goes beyond fabricating evidence. They are using amorphous terrorism statutes to criminalize ordinary aspects of everyday life. Another way of putting it is that prosecutors take ordinary events and stretch them to fit an expansive interpretation of a terrorism statute. A large amount of effort is committed to prosecuting activities that do not fit any common sense meaning of crime."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
Paul Craig Roberts [email him] was Assistant Secretary of the Treasury in the Reagan Administration. He is the author of Supply-Side Revolution : An Insider's Account of Policymaking in Washington; Alienation and the Soviet Economy and Meltdown: Inside the Soviet Economy, and is the co-author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice. Click here for Peter Brimelow's Forbes Magazine interview with Roberts about the recent epidemic of prosecutorial misconduct.