June 10, 2004

Critics of the federal government’s two-year incarceration of accused terrorist Jose Padilla without charges or trial correctly point out that the government has violated Padilla’s right to counsel and his rights to due process of law, habeas corpus, and jury trial, all of which are guaranteed by the U.S. Constitution.

But let’s be clear about the real significance of the Padilla case: the Padilla doctrine does not constitute just another governmental infringement of constitutional rights. Instead, it constitutes the destruction of freedom in America.

“Oh, Mr. Hornberger, you go too far! Don’t you know that here in America, people have the right to vote and to protest? Do you see the military arresting them? And here in America, people have freedom of speech. Do you see the military arresting newspaper editors?”

They’re missing the point. When the executive branch of our government implemented the Padilla doctrine, it crossed its own Rubicon in terms of freedom in America. Under the Padilla doctrine, executive branch officials, including the military authorities, have the power to arrest any citizen and punish him, even execute him, without indicting him, giving him a trial, according him due process of law, or letting him retain an attorney to battle on his behalf. All the government has to do is secure a paper from the president labeling an American citizen as an “enemy combatant” in the “war on terrorism” and the military authorities are then free to inflict any punishment on any citizen whatsoever, and without any external restraints whatsoever.

The Padilla doctrine means that the citizen whom the president labels an “enemy combatant” is not entitled to any judicial protection whatsoever before he is executed. Moreover, once he is receives such a label, U.S. officials can refuse to accord him the protections of the Geneva Convention. Yes, the Pentagon might accord the American with a quick military tribunal before he is executed, just as it provided the World War II Japanese general Tomoyuki Yamashita a quick military tribunal after they took him into custody, but the tribunal will be nothing more than a sham to provide legal cover for an execution, just as it was in the Yamashita case.

The Padilla doctrine applies to every American, including newspaper editors, protesters, and people who vote the wrong way. Once the president triggers the process by formally labeling a person an “enemy combatant,” the unrestrained power of the U.S. military to take that person into custody and execute him is unleashed.

Later this summer, the Supreme Court will decide whether the executive branch's assumption of such omnipotent power violates the Constitution. We should be all be thanking the Framers for constructing a federal system in which the judicial branch has the power to do that. If the Supreme Court fails to nullify the exercise of such power, then the last hope for the restoration of freedom in America lies with the legislative branch, which has the power to enact legislation that bars the executive branch from exercising this power and the power to impeach and remove persons in the executive branch for committing high crimes and misdemeanors; but given the passive and rubber-stamp role that Congress has played in the defense of civil liberties since 9/11, it would be a mistake to place much hope in that body.

The Padilla doctrine is not simply another infringement of liberty, but instead makes freedom in America a dead letter. How can a person be considered truly free when his own government has the omnipotent power to punish him without according him the procedural guarantees provided in the Constitution and Bill of Rights? Sure, everyone will still be considered “free” in the sense that he can vote, write letters to the editor, complain, and protest. But how free is such “freedom” when his government, on the other hand, possesses the unrestricted power to arrest and execute him after letting him cast his vote, reading his letter, listening to his complaint, or watching his protest, even if such power is rarely exercised?

That’s why the Padilla doctrine is so dangerous, revolting, and ominous.

Mr. Hornberger is founder and president of The Future of Freedom Foundation. Send him email.

Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.

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