He now faces the possibility of life in prison even though the case against him was circumstantial. Federal prosecutors never proved he was in Afghanistan or that he was planning actual acts of violence -- only that he had handled a training camp application and may have filled it out. As his lawyer said, "not everyone who attended the camp had the intent to murder." But guilt by association is a powerful tool in terrorism cases. Wasn't that what had ensnared Padilla in the government's web of assumptions to start with -- assumptions that by the government's own reversal over the "enemy combatant" status, were baseless?
Thursday's verdict leaves that snare intact. The Supreme Court never addressed Padilla's original designation as an "enemy combatant." That means the president can still at any point declare any American citizen, on the president's say-so, an enemy combatant and strip that individual of all rights, indefinitely. So the question following the Padilla verdict isn't whether we're safer from terrorism. The question is whether we're safer from our own government. The answer is a persisting no.
By contrast, The New York Times editors -- like most others -- took it for granted that Padilla's conviction on the terrorism was justice served. The Times' editors may know otherwise, but chose to base their opinion on the fictional standpoint that "the jury is always right."
This fiction is grounded on a reasonable belief: that on the whole, over the long haul, juries deliver justice -- better justice than could be achieved other means. But to assume the jury is always in every case delivering "justice" is simply a practical myth -- one that saves people from agonizing over every verdict.
It sounds elitist to challenge the myth. Besides, the old assumptions about "the people" have generally held. In the past, you could assume the best of American People: fair-minded, equitable, decent. Your typical American was even-keeled; he or she was good jury material.
The US jury system is predicated on the assumption that jurors will be drawn from a society of freedom loving souls -- not timid, fear-ridden, scared consumers of media distortion. After six years of hearing the Bush Administration trumpet the fear of terrorism at every opportunity, are Americans more scared of terror or more passionate about justice? If the answer is the former, what kind of juries -- and justice -- will the society render?
The Padilla verdict may be a hint of something rather troubling. Bush's hyperbolic "War on Terror" may well have inflicted more severe damage on American psyche than many of us had imagined. To me, that's the question posed by the Padilla verdict.
The New York Times editors seemed to be happy about the verdict because, to them, it proved the institutions of justice work. They saw the trial as a vindication of the constitutional system of justice -- which the Bush Administration had certainly undermined in its initial handling of the Padilla case. But the Times editors overlook the fact that the there is more to justice than its mechanisms. As important as upholding the institutions of justice is a public grounded in facts about their world, a certain reasonableness of the people.
Thinking about the Padilla verdict, a passage from a book review published in last week's Economist came to my mind. It was from a review of Robert Gellately's Lenin, Stalin, and Hitler: The Age of Social Catastrophe:
Mr Gellately busts another myth too: that Hitler seized power by fear and force. The combination of anti-Jewish and anti-Bolshevik rhetoric played well with the German public. People felt humiliated by defeat and impoverished by recession, and Hitler blamed “the Jews” for both.Hitler's rise to power was made possible not because Germany's institutions had been broken, it was that the Germans were a broken people.
Forsaking the US Constitution may not be the worst thing the Bush administration has done to the United States. In a country that emphasizes the lawyer's legalistic perspective at every turn, this may be a difficult thing even for newspaper editors to recognize.
