Bush Unbound

The Supreme Court must order the government to charge or release Jose Padilla

The war on terror has no bounds. Neither, it seems, does the Bush Administration’s conception of executive power.

Yesterday, Supreme Court justices heard arguments in the cases of Jose Padilla and Yaser Hamdi, U.S. citizens who have been detained in a South Carolina prison without counsel or formal criminal charges for two years. While Hamdi was captured by the Northern Alliance in Afghanistan, Padilla was arrested on American soil. And though Padilla has been accused of trying to build a “dirty” bomb, the government’s inability to dredge up enough evidence to actually charge the man shows just how arbitrary his detention has been.

Congress may have granted Bush the use of “all necessary and appropriate force” against al Qaeda. But his administration’s reckless interpretation of this mandate threatens to undermine this country’s system of checks and balances in the name of military necessity.

Designated an “enemy combatant” by federal authorities, Padilla can legally be held until the conflict in which he participated is over. But Jenny Martinez, Padilla’s lawyer, rightly challenges the basic assumptions the government made when her client was detained. The most important issue is whether Padilla, arrested on American soil, should be declared an enemy combatant in the first place. The government’s lawyer, Deputy Solicitor General Paul D. Clement, claims that because the war on terror is global the whole of the United States is a battleground as well. But if the Supreme Court accepts this justification, it will open the way for the Executive Branch to wield the same kinds of “emergency powers” so often misused in Third World dictatorships. Because the war on terror has no borders and no way of being declared “over,” the Bush Administration can effectively continue to detain Padilla and anyone else it pleases indefinitely.

History is littered with examples of misuse of executive power during wartime. Whether Lincoln’s detention of 13,500 people during the Civil War, Roosevelt’s imprisonment of 120,000 Japanese-Americans during World War II or Truman’s attempt to take over steel mills during the Korean War, these actions have all undermined the spirit of America’s democracy. The Supreme Court must take strong action against the Bush administration’s authoritarian interpretation of executive power and prevent the mistakes of the past from haunting this country once again.

While it’s comforting to see the government prosecuting the war on terror vigorously, the Bush administration already has ample weapons to use against terrorists without having to resort to the methods of autocrats and dictators. America will survive the war on terror. Our democracy must as well.