Back to the Gulag

In the bad old days of the Soviet Union, the Communist government maintained the Gulag, a network of prisons and labor camps across the country (but mainly in the frozen tundra of Siberia) to hold anyone even remotely suspected of insufficient support for the Revolution, having the wrong ethnic identity, and other supposed offenses. (For a vivid depiction of life in the camps, from the endless cold and hunger to the helpless dread one felt at falling into this legal nowhere, I recommend Alexander Solzhenitsyn’s One Day in the Life of Ivan Denisovich.)

A half-century after Josef Stalin’s death, the United States is in grave danger of creating a Gulag of its own. Not in terms of below-freezing prisons in Alaska, but in terms of a legal black hole.

Two years ago, an American citizen and former gang member named Jose Padilla was arrested by federal agents after stepping off a plane in Chicago. In tandem with the White House, the Justice Department said he was an al Qaeda agent, unilaterally declared him to be an “enemy combatant,” and ordered him locked up in a Navy brig in North Carolina. Since then, he has been forbidden to see anyone, from his family to his lawyers, and has been under deep interrogation. He was never charged with any crime and was never put on trial for anything. He was just pronounced guilty and was made to disappear. (It takes a wry sense of irony to note that Padilla’s arrest and enemy-combatant designation was demagogically announced by Attorney General John Ashcroft in, of all places, Moscow.)

Now, the Justice Department has defended its handling of the Padilla case for the first time, and the way in which it has done so is astonishing. Deputy Attorney General James Comey held a press conference the other day at which he announced that Padilla planned to blow up apartment buildings and commit other crimes. Anticipating reporters’ questions, Comey freely said that if Padilla had been put on trial instead of being declared an enemy combatant, “he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope – pray, really – that we didn’t lose him.” He also ominously said that “we’ll figure out down the road what we do with Jose Padilla.”

So the only way to deal with an American citizen who may or may not have been in league with al Qaeda was to make him disappear, that the right of any accused person not to be forced to testify against himself is little more than a technicality, and that Padilla would probably have been acquitted had he claimed that right? To me, this sounds an awful lot like an admission that a court case would likely have been painfully weak. But having invested a lot of political capital in proclaiming him to be a terrorist – especially by blaring accusations in a full press conference without ever bothering to give him any chance to respond – the Justice Department cannot now back away from it.

This is not, of course, to say that Padilla is without doubt an innocent victim of circumstance, blameless and pure. Far from it; we do not know for sure whether he actually committed any of the offenses of which he has been accused. All we have is the government’s claims that he did – and they refuse to put those claims to the test in court.

The American system of justice is based on the notion that anyone accused of wrongdoing is entitled to a fair trial at which the government would have to prove its case beyond a reasonable doubt. Dispensing with all that and just declaring someone to be guilty without even charging him with anything is, quite simply, un-American. The concept that the government has the unchallengeable power to take anyone, particularly an American citizen, and throw them in jail without charges, without a trial, and without end is nothing short of scary.

After two years in a legal limbo, Jose Padilla deserves a trial. If he is found guilty of being an al Qaeda terrorist-in-training, lock him up and throw away the key. If he is found innocent, set him free and allow him to get back to his life. But we will never know the truth unless the government is willing to make an actual case instead of just announcing him to be guilty. Doing anything else is a mockery of justice, plain and simple.