But beyond this, the cases of Jose Padilla, John Walker Lindh and David Hicks—among a slew of others—presented a series of missed opportunities. If you have followed the histories of enduring empires of old, you know that people like Padilla, Lindh and Hicks have in the past been seized upon as special opportunities. America’s current counterterrorism effort is spectacularly unsuccessful in one essential area: penetration of the enemy camp. A truly proactive counterterrorism approach would recognize that naïve adventurers and misfits like Padilla, Lindh and Hicks present the perfect opportunity to get a look deep inside the enemy camp. They would be the perfect individuals to recruit and turn. And the great empires of old—the Romans, the Britons, the Russians to cite a few—excelled in doing exactly that.
But how do the Bush counterterrorism geniuses react when such a prize falls into their hands? They summon up press conferences and extol their success in the capture. That’s an act which in itself, makes the possible use of the captive as a double agent impossible.
It’s not coincidental that the counterterrorism effort has been such a stupendous failure in this area. There has been no serious effort to exploit the assets that are there and right before the government’s nose.
Instead, what is revealed as the priority tactic? Fear-mongering in the service of a domestic partisan political agenda.
As the Bush Administration is conceptualizing and implementing this law, the fact that Padilla thought bad thoughts about the United States and its Government is enough to lock him up for life. There is no requirement that he have actually taken a material step towards a plot to actually do something bad.
And with this, yet again, the Bush Administration is lining its own policies up with tyrannical practices of the late sixteenth and early seventeenth centures that led ultimately to the Civil War and the legal revolution in England. The Court of Star Chamber regularly seized and tortured persons who were suspected of participating in Catholic plots against the monarchy. It was enough that the persons seized be proved to harbor sympathies with Catholic plotters who embraced terrorist methods. There was of course nothing delusional about these concerns. The plotters really existed. Moreover, they were heavily supported by hostile foreign powers, and they aimed to unsettle the country by assassinating the monarch, among other things. In the state security court of that era, there was no need to demonstrate that a person actually had taken a step to act on a plan—it was enough to show his sympathies and his entrance into a conspiracy.
The American Republic was founded upon a repudiation of this notion. But in this area again, the Bush Administration has worked with determination to undo three hundred years of legal history and to reinstate tyrannical practices of the past.
In the end this concept—of thought crime as a major tool for the enforcement of national security concerns—is the gravest issue to arise from the Padilla case. It needs to be monitored and offset through legislation that will resurrect the legal values and principles that existed before Bush’s wholesale onslaught against the Constitution began.
All of these things lead me to view the jury’s verdict in the Padilla case as an important development, but hardly the end of the case. Much remains to be done. Justice may, fairly meted out, involve punishment for Jose Padilla. But the time must come when his tormentors face justice as well.
As they say, go read the whole thing.