By J. Parnell McCarter



All human rights and responsibilities derive from God, who is the ultimate giver of all absolute rights and responsibilities, since He alone is our Creator and Redeemer.   God has revealed these rights and responsibilities to men in His Word, the Bible.  Among the rights and responsibilities found there, is the right not to be punished for an alleged crime without due process of law.  This is why we read, for example, that “One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.”  Consequently, it is unjust for a man to be imprisoned indefinitely without knowing the charges against him and without the weighing of the evidence for the charges by a judge. 


Recognizing these rights given by God, English common law has provided writs of habeas corpus.  It is a writ having for its object to bring a party before a court or judge; especially, one to inquire into the cause of a person's imprisonment or detention by another, with the view to protect the right to personal liberty; also, one to bring a prisoner into court to testify in a pending trial.


By not recognizing the authority of God and His Word in its Constitution and in its modern judicial decisions, Americans have left themselves subject to the whims of men.  The on-going case of Jose Padilla illustrates how this dangerous course may play out, if the Bush Administration has its way.


Here is how the Cato Institute has explained this case at http://www.cato.org/dailys/08-21-03.html :

“August 21, 2003

Jose Padilla: No Charges and No Trial, Just Jail

by Robert A. Levy

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.

Jose Padilla is the U.S. citizen who supposedly plotted to detonate a "dirty bomb." Since his capture -- not on the battlefields of Afghanistan or Iraq, but at Chicago's O'Hare Airport -- he has not been charged with any crime. Yet, for more than a year, Padilla has been held incommunicado in a South Carolina military brig.

Padilla's indefinite detention, without access to an attorney, has civil libertarians up in arms. That's why the Cato Institute, joined by five ideologically diverse public policy organizations -- the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute -- filed a friend-of-the-court brief in Padilla v. Rumsfeld, now pending before the U.S. Court of Appeals for the Second Circuit in New York.

Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an "enemy combatant," then proclaiming that the court may not second-guess his designation.

Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence. That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, "With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel." Judge Wilkinson upheld Hamdi's detention but pointedly noted that Hamdi's battlefield capture was like "apples and oranges" compared to Padilla's arrest in Chicago. "We aren't placing our imprimatur upon a new day of executive detentions," Wilkinson cautioned.

An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Today, we have not had from Congress any statute that authorizes Padilla's detention…”


The case came before the Second Court of Appeals.  Reuters reported the results as follows:

U.S. to Seek Stay of Court Ruling on Padilla
Thu December 18, 2003 03:10 PM ET

WASHINGTON (Reuters) - The White House said on Thursday it would seek a stay of a court ruling that ordered the release of an American being held by the military as an "enemy combatant." The U.S. Second Circuit Court of Appeals, in a 2-1 ruling, said it was illegal for the government to hold Jose Padilla in military custody and said he should be released within 30 days. The court said that the government can transfer Padilla to a civilian authority. "We believe the Second Circuit ruling is troubling and flawed. The president has directed the Justice Department to seek a stay and further judicial review," White House spokesman Scott McClellan told a news briefing…”