I refuse to believe that America is a rogue state, despite some evidence to the contrary.
A national religious leader such as Smilin' Pat Robertson calls for the assassination of Venezuelan president Hugo Chavez. To be more precise, he calls on the U.S. to do the dirty work. Since Robertson is a former presidential candidate who leads his own Christian ministry with the 700 Club, which raises a lot of money, and is a big supporter of Pres. Bush, who has not disavowed the murder-call, one of the Conlawprofs just back from Europe reports that it appears to Europeans that the White House just may be in accord.
Meanwhile, on other fronts, the United States, bastion of liberty and justice for all, continues to hold without charging or affording a due process hearing to Jose Padilla, a U.S. citizen, despite his having the benefit of three court rulings ordering hearings including a Supreme Court decision.
One of the lawyers representing Padilla is Jenny Martinez, 33, a Stanford law professor, who clerked for Justice Breyer and clerked for the International Criminal Tribunal at the Hague, which is trying former Yugoslavian dictator Milosevic for war crimes. I wouldn't want to see any of our top leaders in the dock alongside him.
Below is an interview of Prof. Martinez discussing constitutional issues in Padilla:
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Lawyer defends 'dirty bomber' in name of everyone's legal rights
- Joel Whitney
Sunday, August 28, 2005
Stanford Law Professor Jenny Martinez is just 33, yet she's already stood before the Supreme Court to argue a case she is very passionate and very knowledgeable about, the case of "dirty bomber" Jose Padilla.
Padilla, an American citizen, was picked up on May 8, 2002, as a material witness, while flying into O'Hare International Airport in Chicago. A month later, the government classified him as an "enemy combatant" and a "grave threat" to national security, alleging initially that he had participated in a plot to detonate a radioactive, or "dirty," bomb. He was sent to a South Carolina Navy brig, where he was prevented from seeing his lawyers for two years.
Martinez wrote an amicus brief on the case, drawing on her experience as a clerk to Supreme Court Justice Stephen Breyer and a clerk to the judge of the Hague's U.N. International Criminal Tribunal for the former Yugoslavia. Then she was invited first to assist Padilla's legal team and later to come on as co-counsel. The case was remanded back to a lower federal court by the Supreme Court. Late last month, government prosecutors appealed a February federal court decision that they must charge Padilla with a crime or let him go. A decision is expected soon from the U.S. Court of Appeals based in Richmond, Va.
The case, whatever its outcome, will have wide reverberations because the government is claiming new powers to make executive arrests and suspend habeas corpus for an American citizen. If it gets its way, Martinez argues, the government could do the same to anyone..
Q: What is the problem with how the government has treated Jose Padilla?
A: Well, it's our American tradition, when people do something wrong, to charge them with a crime, give them their day in court and, if a jury finds them guilty, then punish them. Here the government is punishing him without ever putting him on trial.
Q: So what's at stake in this decision?
A: I think it's really about fundamental principles of American law that go back even before America was founded to the right to habeas corpus, which comes from English common law, which is the right not to be imprisoned by the executive without trial.
Q: What do you say to someone who says, "Sept. 11 changed everything," and that in drafting the Constitution, the framers couldn't be aware of black- market nukes, homemade bombs and commercial airliners being crashed into skyscrapers?
A: The Constitution contemplates emergencies. The habeas suspension clause says that in cases of rebellion or invasion, Congress can suspend the right to habeas corpus. So it contemplates that there might be situations of grave national danger of warfare on American soil where we might need to suspend those privileges. Congress has not suspended habeas and therefore, really, the president is acting in a way that is contrary to the framers' design about how to deal with emergencies.
Q: Well, don't the rules just plain change during times of war?
A: The Supreme Court said during the Civil War that the Constitution was written for times of war as well as times of peace. It's precisely in those moments when we're most tempted to violate the Constitution that it's most important that we stick to its values. Because that's really what we're fighting for is our American values, and if we throw out the Constitution then we're really losing what we're defending. As it's been said, the Constitution isn't a suicide pact. It includes provisions, it includes the suspension clause.
So if Congress thinks the situation is grave enough because of a rebellion or invasion, then it can allow the executive branch to detain people without trial. That's what a suspension of habeas corpus is. That provision is designed for warfare and it's not being adhered to here, because Congress hasn't suspended habeas.
Q: So if the president felt this suspension were needed -- that Mr. Padilla needs to be held without trial -- then he needs to go to Congress for the process to work? Is that what you're saying?
A: If he thinks that times are bad enough that we need to detain American citizens without trial, he needs to ask Congress to suspend habeas corpus under the Constitution. He hasn't done that, and I don't think Congress would.
Q: Is habeas corpus as intrinsic a right as there is? Are there levels of protection or levels of negotiation? Are some rights more intrinsic to us than others?
A: Habeas corpus is so important it's one of the only individual rights that the founding fathers included in the Constitution itself, rather than in the amendments. So as you know, the original Constitution was passed first, and then the Bill of Rights was passed a few years later. Habeas corpus isn't an amendment. It was so important that the framers put it in Article 1 of the Constitution itself. So, it is one of the most important rights and has been recognized as such since the 1600s when in fighting against the tyranny of the British monarchy it was established in English law that there was a right to habeas corpus.
Q: You became involved in this case during the two-year period during which Mr. Padilla was held without being allowed to meet with his counsel?
A: Correct.
Q: But since joining his team you've been able to meet with him?
A: I have.
Q: How has he seemed?
A: I think you can imagine that anyone held in solitary for that long -- it's going to have a harmful effect on their mental state.
Q: What is the prosecution's reason for holding him?
A: They really keep switching their story. First it was the "dirty bomb," then they backed off that and said no, it was some plot involving natural gas and apartment buildings. Now they're emphasizing neither of those things and saying that it's because he was in Afghanistan at some point. And that's the basis for holding him. So, they really do keep changing their story. It highlights the unreliability of whatever evidence that came through torture that they're relying on. Which is why we need to have a trial. They need to come forward and actually produce some concrete proof, and then we can decide.
Q: Did torture play a role in his case?
A: According to New York Times reports -- and we cite this in one of our briefs -- some of the people who allegedly produced evidence under interrogation against him were being "water-boarded," which means being held underwater and being made to think they were going to drown at the time that they gave information about him. Of course, the government never told us that, but if you read the New York Times it says so. But I have no idea.
Q: But if you're being held underwater are you likely to tell the truth or whatever you think your captors want to hear?
A: Yes, that's precisely the problem. Our own military's interrogation manuals have long recognized the things that people say while being tortured are notoriously unreliable.
Q: And the latest rationale for his detention is that he's visited Afghanistan?
A: They claim that he was in Afghanistan carrying a rifle, after the U.S. invasion. And that that is a sufficient basis upon which to hold him. That's the latest story.
Q: Is it possible that bringing Padilla to trial might reveal secret information that could compromise the war on terror?
A: We have a Classified Information Protection Act that allows the government to protect classified information in criminal trials. And the convictions of other terror suspects in recent months show that it's possible to protect classified sources and put people on trial. And a federal judge recently convicted some defendants accused of providing support for terrorism, and the judge said the case proves that our criminal justice system works in these cases, that we don't need to hold people without trial and throw our Constitution out the window.
Q: What has being defense counsel for the infamous "dirty bomber" meant for your career?
A: It's taken quite a lot of time. I mean I can't believe we're still fighting about this. The second circuit ruled in our favor years ago. The Supreme Court remanded it on a technical issue to a different court. The district court in South Carolina ruled in our favor in February and said he had to be charged with a crime. It's now August. They say justice delayed is justice denied, and I think that's true in this case.
Mr. Padilla has now been held for more than three years without charge. It's hard for him to understand why the case is taking so long to work its way to resolution. And it's hard for us to understand that as well: Why the government, this far down the road, is persisting in not charging him with a crime. Even if when they initially detained him they didn't have enough evidence, you would think that in the intervening three years they would have been able to accumulate enough evidence to charge him with something. If what they say is true, then he's committed any number of crimes.
Q: I understand some of your team has gotten some threatening letters.
A: I've gotten a little bit of hate mail, but to be honest I've gotten far more e-mail and letters that are supportive, that say, "This is wrong, they shouldn't be doing this to an American citizen, this is not the American way." I would say the number of favorable comments have outweighed the number of unfavorable by 20 to 1.
Joel Whitney is a Brooklyn writer and an editor of Guernica (www.GuernicaMag.com). Contact us at [email protected].
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