End arbitrary imprisonment

March 06, 2005

YET AGAIN, a U.S. court has reminded the Bush administration that it too must follow the laws of the land. And yet again, the administration has pledged to fight back. It should pick better battles.

American Jose Padilla still has not been charged with a crime, nearly three years after his arrest in Chicago. The Justice Department has held a news conference telling the world he is a terrorist, but has not said it to his face legally, in court, ever. His lawyers are bound by a gag order not to talk about the case, so this accusation just hangs out there.

Last week in South Carolina, U.S. District Judge Henry Floyd gave the administration 45 days to charge Mr. Padilla or the court would set him free. Attorney General Alberto R. Gonzales replied that this detention without charges was within the president's power and that the administration would appeal to the next-highest court.

Strange how Mr. Gonzales does not respect the U.S. Supreme Court's rebuke of this argument last summer in the case of a an American found on a battlefield in Afghanistan and also not accused of anything. In that case, rather than charging Yaser Esam Hamdi, whom the administration had earlier called too dangerous to be allowed to talk to his lawyer, the government released him. Will it do the same to Mr. Padilla, after another half-year of legal struggle?

Reviving a discredited category for these men, that of "enemy combatant," also doesn't work. Judge Floyd found that the president has "no power, neither express nor implied, neither constitutional nor statutory," to hold Mr. Padilla under that designation.

If the goal was to keep America safe from Mr. Padilla, it already has worked. As Judge Floyd pointed out in his decision, the mere act of arresting him would have quashed his alleged plan back in 2002 to detonate a bomb. And after he had been charged, he would have been in prison awaiting trial for quite a while, also not plotting or executing harm.

If the goal was to scare Americans into thinking that they could be arrested and made to disappear from family and even their lawyers for years, that also has worked.

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