A NEW BRANCH OF LAW

In last months article I explained the differences between the two traditional types of law in our country - civil and criminal law. I also promised to look at a new branch of law that seems to be emerging as a result of the war against terrorism.

The Bush Administration, led by President Bush, Attorney General John Ashcroft and the Defense Department, is creating a shadow legal system in which alleged terrorism suspects can be investigated, jailed, interrogated, tried and punished without the constitutional protections normally guaranteed by our traditional system. This new system took a dramatic turn on June 09, 2002, when Jose Padilla became the first American citizen in the war against terrorism to be held without charges inside the United States.

The new system has its genesis in the U.S.A. Patriot Act which was passed by Congress six weeks after the World Trade Center fell. The Act was designed with the admirable purpose of deterring and punishing terrorist acts. To accomplish this it enhanced law enforcement investigatory tools and gave the President and Attorney General a license to expand the scope of their authority. They have used their new powers, plus a few old ones, to detain more than 1,200 people in the U.S., both Americans and foreign nationals, in the name of the war against terrorism.

In the case involving Jose Padilla, he was being held in Manhattan under charges filed under the Patriot Act but in federal court under our traditional federal criminal system. The federal judge was scheduled to rule on whether the government had a right to hold Mr. Padilla on June 11, 2002, but never got the chance. In the middle of the night of June 9, 2002, the Defense Department had removed him from prison and placed him in a private wing of a Navy brig in Charleston, South Carolina, with no charges, no access to lawyers or visitors, no warrant and no warning to the federal judge or Mr. Padilla’s attorney. By so doing the government has ignited a debate about whether it has the power to strip basic constitutional protections from its citizens. Mr. Padilla’s attorney has filed a habeas corpus action, which is designed to force the government to bring a prisoner before a judge, and has named several non-traditional defendants including President Bush and Secretary of Defense Donald Rumsfeld. The progress of that case will be very important to follow.

Make no mistake; I am as hawkish as anyone about our government pursuing the war against terrorism, including the use of assassination of confirmed enemy combatants. But this new shadow legal system scares the he.. out of me. Let me give you a hypothetical scenario.

Suppose that through your work or hobby you meet a very nice man. He is married, has children, is active in the community and is fun to be around. Assume also that he is Arabic. You get to know this man, enjoy doing things with him and end up having him over to your home for dinner on occasions and quit often exchange email with him. There is absolutely nothing about this man to indicate to you that he is actually a member of al-Qaida. But he is and he disappears one day and later you learn he died on some suicide terrorist mission. In their investigation, the authorities learn of you friendship with this man and decide that you might possess important information about him or even be in league with him. Under the supposed authority of this new parallel legal system you could be seized, taken to some undisclosed prison and held as a “material witness” without your family even being told where you were and without any right to contact an attorney are take any steps to be released. And what’s worse, you could be held in that manner indefinitely, or until General Ashcroft or the President decided you should be released. Today, in our country, this scenario is now possible and if that thought doesn’t scare you then you are nuts.

The Bush administration is attempting an executive-branch power grab, with no judicial oversight, in the name of national security, and the final outcome of this attempt will be known only after the courts, including probably the Supreme Court, have settled a variety of constitutional issues involved. Any thinking American, hawk or dove, should want to follow the progress of this litigation closely.

You may reach Roger Oliver by e-mail at rmo@oliverlawoffices.com.