The political class and exemption from the rule of law

By Michael Fraase

Sunday, 21 December 2008 12:32PM CST

Section: Law

CriminalIf the George W. Bush presidency is going to be remembered for anything it’s going to be the subversion of the executive branch’s adherence to the rule of law. It was systematic and pervasive.

In 2002, Jose Padilla was arrested at O’Hare airport as an “enemy combatant.” The next day then-Attorney General John Ashcroft announced that Padilla had a radiological weapon he was planning on detonating in the US. From then on, Padilla was referred to as the “Dirty Bomber” and was imprisoned, without charges, for more than three years. The Bush administration repeatedly argued the president is empowered to imprison anyone—even US citizens like Padilla—indefinitely without charges. The only requirement is the use of the “enemy combatant” label.

Civilized people will agree that this is tyrannical totalitarianism. Nothing less.

In November 2005, the Bush administration finally brought charges against Padilla. Charges were brought not because Bush was backtracking from his unconstitutional assertion—the Fifth and Sixth Amendments are absolutely clear on the issue—but rather to cynically avoid a ruling on the matter by the US Supreme Court (remember Sam Alito wasn’t yet a Supreme). Padilla was convicted in August 2007 of “conspiracy to support Islamic terrorism overseas,” not even remotely related to Ashcroft’s original statement.

The Padilla case probably wasn’t the start of Bush’s unchecked expansion of executive powers, but it was certainly the most disturbing. There were many, many others.

There’s a sentiment among some Obama supporters that’s almost as disturbing: That we shouldn’t focus on politically divisive investigations of past crimes by an outgoing administration. Rather, we should focus on transpartisan reconciliation and movement beyond these bad behaviors.

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