- The Washington Times - Sunday, June 13, 2004

After American citizens Jose Padilla and Yaser Hamdi had been imprisoned for nearly two years incommunicado, and without charges, the Supreme Court heard oral arguments in April in their cases. A key question was asked by Justice Ruth Bader Ginsburg of Deputy Solicitor General Paul Clement, arguing for the government:

“The person who is locked up, doesn’t he have a right to bring before some tribunal … his own words?”

As it has all along, the government’s answer to that and other such questions was that, in this war on terrorism, the president may hold an “enemy combatant” for interrogation, during which the detainee can indeed speak for himself.

But his lawyers can’t be present. On June 1, as the Supreme Court was close to announcing its decision in the government’s most controversial actions in the war on terrorism, Deputy Attorney General James Comey — in a televised press conference — finally detailed the government’s previously classified accusations against Jose Padilla, in an attempt to show the nation that the president had acted properly. As Judge Andrew Napolitano, the Fox News senior judicial analyst, told Bill O’Reilly: “This was a shameful effort to sway the Supreme Court.”

During the press conference, Mr. Comey sounded as if he were delivering an opening statement in court, though he was not filing charges against Padilla before a judge and jury. He cited alleged “admissions” by Padilla during two years of interrogations, adding that they were corroborated by high-level al Qaeda operators also questioned while in American custody. But some of those corroborations, it has been reported, were conflicting.

Was there any coercion to get these statements? Mr. Comey said Padilla was not mistreated. Yes, trust the government. There has been credible evidence of systemic forcibly induced “admissions” not only in Iraq, but also at Guantanamo and at Bagram Air Base in Afghanistan.

Meanwhile, Padilla remains in his windowless cell in a Navy brig on American soil, while James Comey can make accusations against him freely without rebuttal from Padilla or his lawyers. In a footnote in the government’s papers to which Mr. Comey barely referred, it does say that “Padilla tried to ‘downplay or deny his commitment to Al Qaeda and the … mission [to blow up apartments in New York, Florida and Washington as Comey cited].’ ”

The footnote adds, as reported in the New York Sun, that Padilla “claims he never pledged (loyalty) to (Osama bin Laden) and was not part of Al Qaeda. He says he and his accomplice proposed the dirty-bomb plot (for which he was arrested at O’Hare Airport in Chicago) only as a way to get out of Pakistan and avoidcombatin Afghanistan. He said he returned to America with no intention of carrying out the apartment building operation.”

How many Americans exposed to the widely publicized Comey press conference are aware of that footnote? Mr. Comey did say that Padilla’s alleged “admissions” are not admissible in court because no lawyer was present.

Significantly,Padilla’s lawyers were only allowed to see him briefly after two years, when, to the government’s apparent surprise, the Supreme Court decided to hear his case. Then, their meeting with their client was videotaped and also overheard by government agents in the room. Moreover, his lawyers were told that everything Padilla said to them was classified. Nor could they ask him what he was saying during his interrogations.

Mr. Comey told the nation that this last-minute release of hitherto secret accusations, which Padilla and his lawyers could not rebut, was in no way intended to influence the Supreme Court’s imminent decision.

I do not believe him.

This Hail Mary press conference was directed, I think, particularly to Associate Justice Sandra Day O’Connor who, during oral arguments, was the most conflicted of the justices in the closely divided court.

The essential question before the high court and this nation remains. Associate Justice John Paul Stevens asked the government’s lawyer during oral arguments: “Are there any cases in the international field, or the law anywhere, explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from them is a legitimate justification?”

Deputy Solicitor General Paul Clement said, “I don’t know that there are any authorities that I’m aware of that address exactly what you’re talking about.”

The sole authority for stripping American citizen Jose Padilla of his fundamental constitutional rights, including the ability to appear and be represented in a court of law, has been the president of the United States. Our Declaration of Independence said of King George III:

“He has combined with others to subject us to jurisdiction foreign to our constitution, and unacknowledged by our laws.”

The Supreme Court will decide whether this monarchical rule has been imposed here again, setting a precedent for future presidents to put American citizens entirely outside the Constitution.

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