The Bush Administration this week charged Jose Padilla (finally after three years in confinement without charge and mostly without legal representation) with:
Two counts of conspiracy: to further murder and kidnapping outside the United States and to provide material aid to terrorists. He is also charged with directly providing material aid to terrorists.
—New York Times
Slate’s Dahlia Lithwick describes the gradual dissolution of the Justice Department’s case against Padilla over time as various Supreme Court decisions in other cases have indicated trying Padilla as an enemy combatant would likely fail before an unreceptive Supreme Court.
Another Times article notes that the government turned away from trying Padilla as an enemy combatant because its two main witnesses had been tortured in secret CIA prisons overseas. Justice did not think U.S. courts (and specifically the Supreme Court) would look kindly on evidence gained through torture.
All of the above describes the gradual dismantling of Bush’s legal approaches to fighting terror. And we should only expect such a dissolution to continue.
The parallels between Bush legal strategy against terror and the Palmer raids organized by Woodrow Wilson’s attorney general, A. Mitchell Palmer, seem obvious. A few months ago, I wrote this about FBI harassment of Arab-Americans:
Actually, the FBI’s clear and outrageous harassment of Muslim-Americans since 9/11 reminds me of two other infamous times in American history when we allowed our justice system to ride roughshod over immigrant groups whose ethnicity or political views were considered unpopular. In the 1920s, the Palmer raids threw thousands of immigrant anarchists and Communists out of the country without charges or trials.
Roger Burbach and Ben Clarke wrote this apt passage about the Palmer connection on September 11, 2002:
Attorney-General John Ashcroft’s flagrant violation of the Constitution and the Bill of Rights is analogous to what happened when another attorney-general, A. Mitchell Palmer, carried out “the Palmer Raids” of 1919. Then over 5,000 people were arrested, most without warrants, and about 250 were deported. Many of the deportees, including the renowned early feminist and anti-war activist Emma Goldman, had lived in the United States as immigrants for decades. Like Ashcroft’s internal war on terror, this earlier violation of the US Constitution came as government officials and the media whipped up domestic hysteria over an alleged “Red Scare”, while a US expeditionary force was dispatched abroad, in this case to Russia to support the conservative “white Russians” in a civil war against the Bolshevik Red Army.
The Palmer Raids, like that other emblem of American shame, the WWII Japanese internment, mark nadirs in America’s commitment to constitutional law. I believe that Bush’s war on terror too will join their ranks as one of the more odious examples of presidents who turn away from bedrock principles to pursue political vendettas or deeply misguided policies.