REAL MEN don’t go to court.
For years, that was pretty much the White House stand with regard to Jose Padilla, the American citizen arrested in 2002 for allegedly conspiring to set off a radiological device, a so-called “dirty bomb,” on U.S. soil. It was a serious charge, and it cried out for courtroom resolution.
Except that real men don’t go to court. The Bush administration, easily the manliest in recent American history, believed only weaklings, traitors and other liberal Democrats could be so naive as to believe you deal with a captured terrorist by reading him his Miranda rights. That, they told us, was evidence of “pre-9/11 thinking.” But everything changed, they said, on that day and the old rules, which had stood the nation through revolution, Civil War, Great Depression and social upheaval, no longer applied.
So they threw Padilla into a Navy brig instead. He was charged with no crime and, according to his lawyers, was drugged and left chained in painful positions in a tiny cell under a light that never went out. No clock, no windows, no bedding, no mattress and, for the first two years, no lawyer.
When civil libertarians demanded to know how you could justify such treatment of a man who had never been charged with a crime, they were told President Bush did not have to bother with such niceties. By declaring Padilla an “enemy combatant,” Bush could imprison him indefinitely and never have to explain himself to anyone.
That bears repeating. The president arrogated unto himself a power ordinarily associated with tyrants, to impose indefinite detention on anyone he chose. And from the people there arose only the sound of crickets chirping in midnight woods.
But three months ago, the real men finally went to court, rather than make their dubious case before a U.S. Supreme Court that seemed ready to take up the question of whether indefinite detention without trial is constitutional. Last week, Padilla was convicted of terrorism conspiracy charges.
We should be glad prosecutors bagged a bad man. But the irony is that this victory utterly destroys the government’s claim that we have to shred the Constitution in order to save it.
Don’t take that as an argument for prosecuting all terrorist trials in the criminal courts system. The administration makes a valid point when it says the courts, with their rules of evidence and open proceedings, are ill-suited to handle at least some terrorism cases. One need only conjure the image of Osama bin Laden putting his hand on a Quran and swearing to tell the truth, the whole truth and nothing but to appreciate the absurdity of trying to process certain terrorist masterminds through the same system that handles carjackers and drug dealers.
But is that image really the only alternative to the image of Padilla chained in isolation under an unblinking light? Is obscenity really the only alternative to absurdity?
I don’t buy that. Why could we not institute a special judicial panel that would allow a terrorism suspect to defend himself as in criminal court, yet be sufficiently opaque to safeguard sensitive evidence from public disclosure?
Thing is, ultimately it wasn’t the justice system the White House sought to avoid. Rather, it was accountability, oversight, anybody who could tell them no. They said, Trust us, because we said so.
And too many of us, scared spitless and willing to trade the Constitution itself for the fool’s gold of security, were shamefully willing to do just that.
So the headline here isn’t the vindication of the Bush Team. It is, rather, that that team, having spent years trying to circumvent the system, ignore the system, emasculate the system, was finally forced to go through the system.
And what do you know? It worked.