The Padilla crime

August 17, 2007

The Jose Padilla case took this country to the edge of a very dark place. He is an American citizen (Brooklyn born), and he was arrested on American soil - and on the say-so of the president he was thrown into a Navy brig where he was held incommunicado and "interrogated" for 3 1/2 years. And if anyone wants to argue that he wasn't tortured during that time, he was clearly subjected to the sort of treatment that no American court would countenance if an American court had had jurisdiction over him.

The man who was White House counsel when Mr. Padilla was arrested, Alberto R. Gonzales, argued that no one accused of taking up arms against the United States should be allowed access to a lawyer - or, by extension, to the judicial system of this country. It's worth spelling that out more clearly: The president or the attorney general (that's Mr. Gonzales today, of course) or any number of other federal officials can accuse an American of plotting against the government, and - poof! - that American is removed from society and the rule of law.

Most Americans continue to believe that it won't really happen here, and maybe they're right, by and large. But it did happen to Mr. Padilla, who was accused of contemplating a horrible crime, though he appears to have had no means to carry it out.

He was arrested in 2002 and tagged the "dirty bomber." But by 2005 the Supreme Court was becoming more sympathetic to the notion that laws should still mean something. Justice Antonin Scalia, in particular, wrote that he saw no basis in the Constitution giving the president the authority "to use military force rather than the force of law against citizens on American soil."

Coming from such a conservative justice, that comment seems to have shaken the administration. As the court was about to take up Mr. Padilla's case (for a second time), the government short-circuited an unfavorable decision by transferring him to the criminal court system and essentially charging him with conspiracy to aid al-Qaida. It couldn't bring any charges connected to the dirty-bomb plot because that case was thoroughly tainted by its treatment of the defendant.

Yesterday a federal jury in Miami found Mr. Padilla guilty. That's hardly a vindication of the administration. For one thing, no acts of violence or terror were linked to the man who was once said by President Bush to pose a "continuing, present and grave danger" to national security.

Jose Padilla was a petty criminal who found Islam in an American prison and thought that in jihad he could amount to something. He didn't: One government intelligence report suggests that the idea of a dirty bomb was a ruse to allow him to get away from the al-Qaida camp where he was staying. He's pathetic, actually. Yet because of someone like this, the Bush administration was willing to junk the Constitution and redefine the legal system as it saw fit. That's the real crime.

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