A right affirmed

December 21, 2003

FEDERAL APPEALS courts on two coasts have spoken with one voice on the right of terrorism suspects to have access to the American judicial system: It can't be denied by the president of the United States in a time of war.

Of the two rulings, the decision by the 2nd U.S. Circuit Court of Appeals in the case of Jose Padilla, the American accused in a "dirty bomb" plot, stands out because it affirmed the belief of most every American that the rule of law prevails in our country and affords us certain fundamental rights and protections. Among them are the right to a lawyer and the right not to be held without charge.

In this post-Sept. 11 world, ferreting out terrorism has become the Bush administration's reason for any number of actions now under scrutiny by courts. But safeguarding our national security cannot be allowed to trump our constitutional rights, and it must not be the excuse for undermining our civil liberties. On the contrary, the court affirmed that our constitutional rights are so important that to impinge upon them would require the president and Congress to act in concert.

The case of Mr. Padilla drew national attention - and criticism of the Bush administration - because he was an American citizen who had been stripped of his rights. Mr. Padilla was arrested last year at a Chicago airport as a suspected terrorist and later declared an "enemy combatant." Under that designation, Mr. Padilla has been detained in a military jail without charge and prohibited from seeing a lawyer. Acknowledging that the government had good reason to suspect Mr. Padilla, the federal appeals panel nonetheless found his detention to be wrong. The court, noting that it sits within blocks of the site of the World Trade Center, recognized the president's responsibility to protect the nation, but argued that that responsibility doesn't override Congress and the courts.

The second case, decided by a federal appeals court in San Francisco, involved a Libyan captured in Afghanistan during the fall of the Taliban and held with 600 other foreigners at the Guantanamo Bay Naval Base in Cuba. They were denied lawyers and access to the U.S. courts. The 9th U.S. Circuit Court of Appeals chastised the government for "running roughshod" over their rights.

The final say over the Bush administration's sweeping legal strategy will likely come from the U.S. Supreme Court. The court has already agreed to review the detention of the Guantanamo Bay prisoners, and the government says it will appeal the Padilla ruling. Until the court's review, the Bush administration should resist further erosion of civil liberties.

As for Mr. Padilla, the New York court ordered him released from jail. The government can chose then to hold him as a material witness or charge and prosecute him - as it would any other citizen. That is how the system is supposed to work and what every American deserves.

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