Padilla question remains

November 30, 2005

Just because the administration has stopped holding American Jose Padilla in prison incommunicado and without charges doesn't mean that it was right to do so in the first place - and for three and a half years. The Supreme Court should take up the case brought by Mr. Padilla's lawyers and answer the question posed so clearly in the filing: "Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

If the court does not take the case, and thus implicitly answers "yes" to the question, some other American may sit in a brig for three years without charges waiting for the next appeal.

The president may not bypass due process to hold an American picked up in a foreign land, according to the court's decision in the Hamdi case last year. But according to the highest-court ruling in the Padilla case, that of the U.S. Fourth Circuit, he may do so if the suspect is an American here on U.S. land. That just doesn't make sense.

The right to freedom is basic to this republic. When the government takes someone's freedom away by locking him in jail, that person has the right to know why and to argue in court that he should not be held. These are rights, they are not optional - and they do not change in war or peace.

The administration argues that as it has finally charged Mr. Padilla, moving him into a civilian prison and the case into civilian court, the Supreme Court case is moot. But while the physical circumstances have changed, the legal issue has not. A man who releases the neighbor he kidnapped is still guilty of kidnapping.

Mr. Padilla is no saint, but he apparently is no dirty bomber or poison-gasser either. He is charged with conspiring to send money and recruits overseas to incite violence in foreign lands, serious accusations, but a far cry from the accusations of then-Attorney General John Ashcroft that he intended to paralyze U.S. cities and kill Americans.

It is possible that if Mr. Padilla is found not guilty in federal court, the administration could again declare him an "enemy combatant" and return him to a military brig. It is possible that the administration could declare any other American an enemy combatant and do the same. To check this overreach of presidential power, the Supreme Court must rule on this case.

Uncertainty serves no one.

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