End Mr. Padilla's Limbo

WHEN THE BUSH administration first asserted the power to hold Jose Padilla as an "enemy combatant," without charge, trial or access to counsel, his case came before Chief Judge Michael B. Mukasey of the U.S. District Court in New York. Judge Mukasey delivered a compelling opinion sensitive both to the government's legitimate needs and to Mr. Padilla's status as an U.S. citizen entitled to access to the courts. He rejected the arguments by Mr. Padilla's lawyers that a U.S. citizen arrested domestically could never be held as an enemy fighter, but he also insisted that Mr. Padilla be allowed to respond to the allegations against him -- and to consult with his lawyer in doing so. This ruling gave the Bush administration everything it could reasonably expect: the ability to hold and interrogate an alleged al Qaeda operative for a lengthy period subject only to basic safeguards and review.

Yet the administration was unwilling to live with even this most minor curtailing of its unilateral power in the war on terrorism. It spent the next year and a half going to the Supreme Court to get the case yanked out of the New York courtroom and refiled in South Carolina, where Mr. Padilla is now being held. And last week, it got a new ruling -- but not the one it hoped for. Judge Henry F. Floyd of the U.S. District Court issued an opinion far tougher on the government than Judge Mukasey's more than two years before.

In one important respect, we think Judge Floyd was too tough. He ruled that the government had no right to detain as an enemy combatant a U.S. citizen who had been arrested domestically in a civilian setting. But when Congress authorized the use of military force after Sept. 11, 2001, it gave the president the power "to use all necessary and appropriate force against those nations, organizations, or persons" responsible for the attacks and "in order to prevent any future" attacks. If the war on terror is in any meaningful sense a real war, detaining people believed to be plotting attacks on the enemy's behalf must be part of the power to fight it. There may be times when enemy soldiers, even if U.S. citizens, must be held but cannot be tried in civilian courts. At the same time, this is no regular war, which is why Congress long ago should have enacted rules to govern the military's behavior.

But the government's handling of this case has been lamentable and self-defeating from the beginning. Its initial contention that it could hold Mr. Padilla indefinitely, giving him no chance to rebut any charge or consult with a lawyer, shocked the conscience of anyone devoted to liberty. Mr. Padilla's situation now has improved in that he has access to counsel and the ability to contest the government's assertion that he is an al Qaeda fighter. The only reason he has not yet had a hearing on the evidence is that he and his lawyers decided first to litigate the question of the government's authority to detain an enemy combatant.

But he remains a citizen held without formal criminal charges under a legal theory not used since World War II. Mr. Padilla's intelligence value has been exhausted, and the government has had a long period in which to formulate a criminal case against him. Legalities aside, there is no longer any plausible reason to hold him in this troubling status. The government should charge him or release him.