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The Bush Impeachment Archives Building

Where each member of the 110th Congress stood.  Citizens who spoke out against these precedents.

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Following are the precedents introduced to the republic as a result of the 110th Congreess's failure to impeach George W. Bush.  It will never be forgotten which members of Congress allowed this to happen.  The Archives is presently looking for a buidling donation, preferably near the future George W. Bush Library.  The names of the 110th Congress shall live forever.  And their names shall be Treason to the Republic.

                                                         -  The Curators



The Constitution Room
What did you do in the war over the Constitution, grandpa?
padilla in blackout goggles

Wartime Powers Declared Indefinitely

The claim of powers during war to detain American citizens, without trial, charges, or contact with the outside world for the duration of a war has, rightly or wrongly, long been a staple of presidents.  After 9/11, George Bush became the first president in American history to proclaim a war which had no end.  The impact to the American Bill of Rights, the "inalienable rights" proclaimed by Thomas Jefferson, was clear as day.    Although the Sixth Amendment guaranteed to every American the right to a trial by a jury of his or her peers in peacetime, war became the permanent state. 

As an example of circumstances which the Founders could not foresee, the "war on terror" was perfect.  Technology now allowed a relative few, striking from a position of invisibility, to do as much damage in a short time as an army.  However, the Constitution's elastic construction allowed for many circumstances the Founders could not foresee.  It gave Congress the power to impeach for "high crimes and misdemeanors," a deliberately vague category of offenses.   Impeachment was flexible enough to encompass any reach for power which failed the president's highest duty, sworn before taking office, to "preserve, protect and defend the Constitution of the United States."  That Constitution includes the Sixth Amendment of the Bill of Rights, the right to a jury trial. 

By failing to impeach George Bush, the 110th Congress allowed the precedent of permanent wartime powers to stand, and Sixth Amendment  rights are no longer "inalienable" as Jefferson declared.  These rights are now subject to the pleasure of the president and the executive branch.


EXHIBIT

Jose Padilla, Pictured Above, Held in Military Brig for 3 1/2 Years Without Charges or Trial


The first American citizen arrested on American soil and declared "enemy combatant," a designation which overrides the Sixth Amendment of the Bill of Rights in the first war which lasts indefinitely.

”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

                                                                       -- Sixth Amendment of the US Constitution, the “Bill of Rights”



       As the first war in American history in which the enemy is, for all practical purposes, invisible (no visible troop formations, no airstrips, no armor,) the declaration of permanent war together with the claim of wartime powers by the Bush administration constituted a permanent revocation of the Sixth Amendment's iron-clad guarantee of a jury trial for any American charged with a crime.  All that is necessary now for the government to override this formerly "inalienable right" is for terrorism to be alleged.  Jose Padilla was arrested at O'Hare International Airport on May 8th, 2002, for what the government said was a plot to set off a "dirty bomb," a conventional explosive which scatters radioactive material over a broad area.  The Fourth Circuit Court, in an opinion written by Judge J. Michael Luttig, upheld the government's claim that it had the power to hold Americans as "enemy combatants" indefinitely.  The true test of the executive order's constitutionality, the Supreme Court, was avoided at the last minute when the administration suddenly released Jose Padilla to the civilian courts for trial.  By that time, Padilla had been held for 3 1/2 years in near total isolation in a special wing of the Navy Brig at Goose Creek, South Carolina. 

   
Notable about the Padilla case is that the government's allegations changed a number of times.  It was first alleged that Jose Padilla, a former Chicago gang member, planned to set off a  "dirty bomb."  Later, that allegation was dropped, and the governement said instead that Padilla had planned to blow up apartment buildings using natural gas.  At his eventual civilian trail, neither of these allegations was even mentioned.  In the absence of formal charges, allegations took the form of press releases from the government.  Padilla was not allowed to speak to an attorney until 2 years into his confinement, and not until his civilian trial did he have the chance to answer any allegations.  The main charge finally filed formally against Padilla was "conspiracy to murder, kidnap and maim persons in a foreign country" during a visit to the Middle East in 2000, which his lawyers say was for the purpose of studying Arabic and the Koran after a conversion to  Islam.

padilla executive order
Executive order signed by George W. Bush directing that Padilla be taken into military custody as an "enemy combatant."

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Padilla being shackled at the feet prior to being marched down the hall to a dentist.

padilla photo
Padilla being escorted to his trial, after 3 1/2 years in isolation.


        At his eventual trial, the principle piece of evidence against Padilla was an Al Qaeda "application form" he had purportedly filled out to attend an Al Qaeda training camp in 2000, complete with a line for "address for emergency contact (optional)."   Defense lawyers argued that Padilla had traveled to the Middle East to study Islam and Arabic, not to participate in violent Islamic jihad.  The main supporting piece of evidence for Padilla's arrest warrant in 2002 was testimony by terror suspect Abu Zubaydah, which was
obtained, Padilla's lawyers claim, under torture by the CIA.  The tapes  of the Abu Zubaydah's interrogation are among those which generated controversy when CIA Director Michael Hayden disclosed that the tapes had been destroyed1

michael hayden
CIA Director Micheal Hayden (Air Force General)

      During his 3 1/2 year detention, Padilla's lawyers said he was subject to hooding, stress positions, assaults, and threats of imminent execution.  

Warren Richey of the Christian Science Monitor reported:


“Padilla’s cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla’s lawyer was prevented from seeing him for nearly two years....[Padilla's captors] punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds.” 


      Padilla also stated that he was “injected with a ‘truth serum,’ a substance his lawyers believe was LSD or PCP.  Deprived of any view of the outside world, with the lights always kept on, Padilla had no way of knowing what time of day it was or what day of the week.

       In his affidavit filed during Padilla's civilian trial, his attorney Andrew Patel said, “I was told by members of the brig staff that Mr. Padilla's temperament was so docile and inactive that his behavior was like that of ‘a piece of furniture.' ”  Patel described how it was difficult to work with Padilla in his defense, because “Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government's interrogation scheme.”
Padilla was especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day.

jose padilla imagePadilla before dentist visit

navy brig goose creekNavy Brig at Goose Creek, South Carolina, where Padilla was held for 3 1/2 years in isolation.

       The issue is not Padilla's guilt or innocence, although now we many never know because his mind was destroyed during his confinement.  The issue is the egregious violation of his rights as an American, in Bush's first test of indefinite wartime powers.   Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit that Padilla “lacks the capacity to assist in his own defense...During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body.”

      At his trial, prosecutors asked, and Judge Marcia Cooke granted, that no mention be allowed of Padilla's 3 1/2 years in military detention to the jurors. However, the prosecution was allowed to show, on a wall-sized screen, a 7-minute video of a Bin Laden speech which had nothing to do with  the case.


Court Review Neglects Novel Facts of War on Terror

      Defenders of the government's actions cite the legal precedent of Ex parte Quirin, which the Fourth Circuit Court of Appeals relied upon to uphold the government's power to hold American citizens indefinitely. 
However, according to any standard law dictionary, a prior decision must have "a similar question of law and factual situation" in order to serve as a precedent (Merriam-Webster Dictionary of Law.)   In Quirin, a number of German-Americans were held as enemy combatants after being accused of spying for Germany during World War II. 

     The Fourth Circuit Court opinion, written by Judge J. Michael Luttig, never addressed any differences in "factual situation" which might distinguish the traditional form of war, nation against nation, from the War on Terror, in which the enemy is a network with no formal hierarchy, no industrial military weaponry, and no national base.  In traditional war, at some point, it is impossible to maintain that the war has not come to an end.  The War on Terror presents no such limitations.  Soon after 9/11, George Bush took pains to proclaim the War on Terror's infinite time horizon, by announcing in a speech before a joint session of Congress on September 20, 2001, that it was "a task that does not end."  The Luttig court made no mention of this difference in "factual situation" from previous wars, nor the peril it might pose to the Constitution.
judge j michael luttig
Judge J. Michael Luttig


      After his 3 1/2 years of isolation and torture during military detention, Padilla was nonetheless ruled fit to stand trial.  His lawyers objected that the isolation and torture had rendered him mentally incompetent, that he was a broken man.   He was convicted and sentenced to 17 years in prison regardless.  He is now incarcerated at Supermax Federal Prison in Florence, Colorado.

    The most important result of the Padilla case was to firmly establish the precedent that American citizens may be held, tortured, and denied access to the civilian courts indefinitely, upon their designation by the executive branch as an "enemy combatant," in the open-ended "war on terror."



Paul Craig Roberts, former Assistant Secretary of the Treasury under Ronald Reagan and an editor of the Wall Street Journal, criticized the jury's verdict in the Padilla case as having "overthrown" the Constitution and doing far more damage to the US' liberty than any terrorist could.


"[Seventeen] years and four months seems to me to be an extraordinarily long sentence for little more than a thought crime, but when the issue of Padilla's three and half years of suppressed torture is raised, it's difficult not to conclude that justice has just been horribly twisted, that the President and his advisors have just got away with torturing an American citizen with impunity, and that no American citizen can be sure that what happened to Padilla will not happen to him or her. Today, it was a Muslim; tomorrow, unless the government's powers are taken away from them, it could be any number of categories of 'enemy combatants' who have not yet been identified."

                                                                                           - British Historian Andy Worthington


Chronology and Summary of the case of Jose Padilla, American citizen captured on American soil.


Footnotes

1. Author Gerald Posner maintains that, according to his sources, during his interrogation Abu Zubaydah linked three members of the Saudi royal family and a top Pakistani military commander with 9/11.  It is difficult to verify or disprove Posner's claims, which single out the men by name.  But though Posner's narrative may be disputed, what cannot be disputed is that soon after the connections were alleged, all four men were dead within weeks of each other.