The Pentagon stops time

Little noticed amid the flurry of congressional hearings into the US Attorney firings and all the cynical abuse of the governmental apparatus that that scandal continues to expose came a quiet and ridiculous ruling by US District Court judge Marcia Cooke in the Padilla case.

A federal judge refused to dismiss terrorism support charges against Jose Padilla on Friday, rejecting defense claims that his 3 1/2 years in custody as an enemy combatant violated his constitutional right to a speedy trial.

U.S. District Judge Marcia Cooke agreed with prosecutors that Padilla's years in isolation at a Navy brig did not count because he had not yet been charged.

he criminal charges came when Padilla, a U.S. citizen accused of being an al-Qaida operative, was added to an existing Miami terrorism support indictment in November 2005. Only then did the clock start for the Sixth Amendment's right to a "speedy and public trial," Cooke said.

"I agree that the law in this case is that a criminal trial proceeding begins with the filing of the criminal process," Cooke said. "Mr. Padilla has been promptly brought to court in that matter."

The utterly specious reasoning employed is best discussed by Jacob G. Hornberger, who points out just what just what such a ruling implies for all Americans.

Last Friday, the presiding judge in the case, Marcia Cooke, denied Padilla’s motion to dismiss. The judge held that when a person, including an American citizen, is held in custody by the Pentagon as an “enemy combatant,” the time doesn’t start running with respect to his right to a speedy trial. It begins running, she held, only when he becomes part of the federal criminal-justice system.

Gee, I wonder if the judge’s reasoning applies to the rest of the Bill of Rights as well. Maybe the First Amendment doesn’t apply if it’s the Pentagon that is suppressing speech and assembly as part of its perpetual “war on terror.” Or maybe the Second Amendment prohibits only the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), not the Pentagon, from seizing guns from the American people, as it is doing as part of the “war on terror” in Iraq.

Our 18th-century American ancestors would have found Judge Cooke’s ruling to be ludicrous. If a military department of government is exempt from the restrictions of the Bill of Rights, then the entire executive branch is exempt for the obvious reason: Whenever the government wants to exempt itself from the Bill of Rights, all it has to do is employ the military to do the dirty deed. The purpose of the Bill of Rights was to protect the American people from the federal government, not a particular department of the federal government.

We've all known the Padilla case has enormous implications for what the federal government can and cannot do, even though it is fairly spelled out in the Constitution. But so far, the Federal Court system has not generally resisted the Bush administration on its claims of supreme authority to determine who is an "enemy combatant." Given the congressional slide on the Military Commissions Act, that is not likely to be challenged anytime soon. One of the first things the Democrats should have had "on the table" was the repeal of the odious MCA but, as far as I've seen, there has been barely a move on this front. The minor effort to get habeas corpus reinstated has been just that; minor.

Hornberger draws the obvious conclusion from Cooke's ruling on Padilla:

Don’t forget: José Padilla is an American citizen. Thus, this case continues to hold ominous implications for the American people, especially when Judge Cooke’s ruling is considered in conjunction with the ruling of the Fourth Circuit Court of Appeals that upheld the government’s “enemy-combatant” designation for Americans as part of its “war on terrorism.” That means that whatever the government has done – and continues doing to Padilla – and, for that matter, every other “enemy combatant” in its “war on terror,“ – it has the authority to do to all Americans.

[via spiiderweb™]