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The Executive Bill of Attainder
By Lorraine Stone, Oceanside, NY
Angels don't need laws, but America's human citizenry does. Our Founding Fathers wrote those fundamental laws into the federal Constitution.
Jose Padilla is neither angel nor genius. Following a jailhouse conversion to Islam, he was allegedly involved in an Al Qaeda plot to produce a dirty bomb and detonate it in Washington, DC. Seized by federal agents at O'Hare Airport (which was named for a hero who died protecting America and the Constitution, the Republic's beating heart), Padilla is incarcerated in a Navy brig, denied access to attorneys, and perhaps uninformed of the accusations against him—isolated and stripped of all Constitutional protections.
The Constitution is suffering a heart attack. Padilla, a thug who likely couldn't build a tinkertoy, is purportedly sufficiently dangerous to justify abrogating Amendments IV, V and VI, which were intended to remove a dangerously tyrannical threat to our republic: the Bill of Attainder.
Black's Law Dictionary defines "Attainder" as: "That extinction of civil rights and capacities which takes place whenever a person who has committed treason or a felony receives sentence of death for his crime." Black’s defines "Bill of Attainder" as: "A legislative act, directed against a designated person, pronouncing him guilty of an alleged crime (usually treason) without trial or conviction according to the recognized rules of procedure, and passing sentence of death and attainder upon him."
• Amendment IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Padilla's person, house, papers and effects were seized. Whether warrants, if issued, were upon "probable cause" or to whom "cause" seemed "probable" is unpublicized. Nor have we learned whether the warrant(s) "particularly describe the place … searched [and] persons or things … seized." President Bush and Attorney General Ashcroft declare, without proof, that everything involving Padilla is too sensitive to reveal. Invoking security, America is haughtily denied evidence as Padilla is unconstitutionally denied counsel. We must take the President's and his appointees' unproven, uncorroborated word.
• Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger … nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without the due process of law …"
Padilla is "held to answer for" unspecified crimes, perhaps "capital or otherwise infamous." No grand jury presentment, indictment or trial was held nor, seemingly, contemplated. Hence there has been no need—yet—to compel self-incrimination. He is not in land or naval forces or the military reserves (the militia's modem counterpart), although since September 11 there is an undeclared war against an amorphous enemy and a consequent "public danger." Padilla, however, poses not nearly the grave threat to the Constitution as his arbitrary, unexplained (and seemingly unnecessary-to-explain) deprivation of liberty and property, perhaps of life, without even the pretense of "due process of law," ostensibly in the interest of security.
• Amendment VI: "The accused shall enjoy the right to a speedy and public trial, by an impartial jury; … be informed of the nature and cause of the accusation; … confronted with the witnesses against him; … have compulsory process for obtaining witnesses in his favor; … have the assistance of counsel for his defense."
None of these safeguards are afforded Padilla. Substituting "executive" for "legislative" in the definition of a Bill of Attainder, Padilla's case qualifies as the first instance, since ratification of the Constitution, of a person being pronounced "guilty of an alleged crime (probably treasonable, if not treason) without trial or conviction according to recognized rules of procedure …" The sentence administered, in this case, is the death of every Constitutional protection afforded American citizens.
Jose Padilla, an unlikely non-angel, is an odd Constitutional champion. But in placing themselves above the Constitution—which all governmental servants swear to "preserve, protect and defend"—and arrogantly abrogating three inconvenient Amendments in the name of safety, the President and his Attorney General pose a greater danger to the Republic than petty criminals.
Benjamin Franklin said: "Those who trade liberty for security deserve neither." Ultimately, they get neither.
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