Gaining an advocate

February 12, 2004

GETTING BACK on an even keel is one of the things the American system does best, and the latest evidence came yesterday with the announcement that the government will relent and allow Jose Padilla to see a lawyer - just 21 months after his detention.

Mr. Padilla is the American citizen who was taken into custody in Chicago on the suspicion that he planned to take part in an al-Qaida conspiracy to detonate a radioactive "dirty bomb" in the United States. The uncovering of the plot - if in fact there was such a plot - was announced, somewhat peculiarly but with breathless fanfare, by Attorney General John Ashcroft during a visit to Moscow. Mr. Padilla was held as a material witness and then designated as an "enemy combatant" - and has been held incommunicado ever since in a Navy brig.

The law says that the accused are entitled to counsel. Mr. Padilla has had none. He was not taken prisoner on a battlefield, or in a foreign country, or even with a bomb in his hands. He stepped off a plane at O'Hare Airport and vanished into confinement. His treatment demonstrates a brazen and inexcusable disregard for his rights.

The government strove to keep his case out of the courts - as a military matter. The war on terrorism, which was described again and again as a different type of war, was invoked to justify his imprisonment without charges, conviction or anyone to argue his case. But time - the great healer - has begun to restore some measure of common sense.

For sure, the government's change of heart is grudging and partial. The Pentagon yesterday said it was allowing Mr. Padilla access to a lawyer on its own say-so, and wasn't subject on this account to any American or international law. Still, it's the beginning of a change for the better.

Recently, the 2nd U.S. Circuit Court of Appeals in New York ruled that the military lacked the authority to hold Mr. Padilla. The government has appealed that ruling to the Supreme Court, but it doesn't seem, in 2004, that quite such desperate and un-American measures are called for in the handling of suspects. In fact, the Supreme Court has also agreed to review the case of the other American being held as an enemy combatant - Yaser Esam Hamdi, who was captured in Afghanistan in 2001. The interesting thing about Mr. Hamdi, who at least fits the description of combatant better than Mr. Padilla does, is that he already has been allowed to see a lawyer.

Faith in the American system of justice is not such a bad thing. It's good to see the administration coming around.

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