You have to give John Ashcroft credit: The man knows how to call a press briefing. Announcing the incarceration of Jose Padilla, a.k.a. Abdullah al Muhajir, as an ”enemy combatant,“ Ashcroft sounded like Melvin Purvis on John Dillinger. The arrest of Padilla, Ashcroft declared from Moscow, ”disrupted an unfolding terrorist plot“ that could have led to ”mass death and injury.“
Within hours, though, the leaks began — from law enforcement, from the CIA, from the White House itself. Padilla, it turns out, is not exactly what you would call a criminal mastermind. In the last few days it has turned out that his ”unfolding terrorist plot“ was more of a vague notion — a step down from his earlier fantasy of building an H-bomb from plans found on the Internet. Supposedly Abu Zaida, the al Qaeda operations director now in custody in Pakistan, sent Padilla home from Afghanistan this spring to see what he could do. Just as likely, someone like Abu Zaida knew a loser when he met one and sent Padilla home with every expectation that the former Chicago gangbanger would be caught upon re-entering the country, as he was on May 8.
The Padilla case makes more clear than ever the administration’s growing mistrust of its own attorney general. What had been irritation at Ashcroft‘s failure to inform the president of embarrassing FBI memos on al Qaeda has now become open warfare. White House surrogates openly challenge Ashcroft’s judgment: Defense Secretary Paul Wolfowitz, for instance, downplays Padilla‘s conspiratorial significance, while the American Enterprise Institute’s Norman Ornstein tells reporters Ashcroft ”runs the risk of damaging the credibility of the whole administration and the president.“ Law-enforcement officials wonder aloud if it would have been more productive to let Padilla go and follow him rather than turn him into a constitutional test case.
Yet a constitutional test case it is. And as it turns out, the administration‘s attempt to entirely remove an American citizen from the protective penumbra of the Bill of Rights has less to do with Padilla’s importance as a conspirator than with the slow but steady unraveling of the Justice Department‘s legal strategy. Until last week, the Justice Department had been holding Padilla as a ”material witness“ in its al Qaeda investigation. But in April, U.S. District Judge Shira A. Scheindlin ruled in another September 11 case that ”relying on the material-witness statute to detain people who are presumed innocent . . . in order to prevent potential crimes“ violates the Constitution. Padilla was moved to military custody to evade a similar judgment.
What the administration has done with the Padilla case is set up a fundamental struggle between the White House and the courts — and it is not at all clear who wins. Secretary of Defense Rumsfeld openly declares he has no intention of giving Padilla a trial: ”We are not interested in trying and punishing him at the moment. We are interested in finding out what he knows.“ In other words, the administration has declared its unilateral right to remove cases from the jurisdiction of courts whenever convenient, a seizure of executive power which can only leave federal judges gobsmacked.
What’s more, Ashcroft‘s overhyping of the Padilla case raises exactly the sort of questions the administration doesn’t need about the credibility of its charges against Padilla. After all, Padilla is no ”Arab Afghan,“ no Saudi Taliban volunteer militiaman like those sojourning in Guantanamo Bay. He may well be — as President Bush says — a ”very bad guy,“ a criminal conspirator, a low-level lowlife in the al Qaeda mafia. But without a trial, the administration is saying: Take our word for it. This after the attorney general has already misled the public and press about the nature of Padilla‘s alleged offense, and after the too-swiftly-forgotten Wen Ho Lee debacle, in which another American citizen with overseas connections was accused — falsely, as it turned out — of being a traitor.
As it happens, the Padilla case is in the news just as the nation marks the 30th anniversary of the Watergate break-in. Some of the lessons of Watergate echo through the Padilla case and through the administration’s broader security policy. It is easy to forget that Watergate was not just about a break-in and not just about a cover-up: It was about an unprecedented seizure of power by the executive branch, an obsession with secrecy and contempt for Congress, the courts and the media. In hindsight, the Padilla case may well turn into a pivotal moment in the Bush administration‘s restoration of an imperial presidency.