Indict Jose Padilla

Saturday, September 10, 2005

YESTERDAY'S DECISION by the U.S. Court of Appeals for the 4th Circuit in the case of alleged enemy combatant Jose Padilla will be played as a big win for the Bush administration. In one sense, it is. A U.S. District Court judge in South Carolina, where Mr. Padilla is locked up, had held that the president has no authority to detain as an enemy combatant a U.S. citizen arrested domestically in a civilian setting -- even if Mr. Padilla was, as the government claims, an al Qaeda operative sent here to conduct terrorist operations. The unanimous decision this week by an ideologically diverse appeals panel wipes out the South Carolina ruling. Congress has authorized the use of force against al Qaeda, it ruled, and the Supreme Court has made clear that this authorization includes the power to detain, as well as to kill, the enemy -- holding enemy soldiers being a traditional part of waging war. If Mr. Padilla really is an al Qaeda operative, the panel concluded, Congress has authorized his detention without formal criminal charges.

In a larger sense, however, the decision changes nothing. The U.S. District Court ruling was a stretch under the Supreme Court's recent decision in the case of Yaser Esam Hamdi -- the other American citizen held as an enemy combatant after Sept. 11 -- so the appeals court's action is no surprise. What's more, it will not be the final word on this subject. The legality of the administration's position will be decided by the Supreme Court. The administration's prospects there remain cloudy at best; a majority of justices have expressed anxiety about the government's position. Even flush from its appeals court victory, the administration cannot be confident of prevailing. There may be times when circumstances require the detention of an American citizen fighting for the other side who, for some reason, cannot be tried in civilian courts. But by continuing to hold Mr. Padilla in this weird legal limbo, the government invites a high court precedent that would deny the president this power.

The government's handling of Mr. Padilla's case has been both bruising to liberty and self-defeating from the outset. The military initially contended that not only could it hold him indefinitely, but also that he could not consult with counsel or get any chance to contest the basis for his detention. When a respected federal judge in New York affirmed the core of the government's position -- that Mr. Padilla could be held as an enemy fighter -- but required that he get to see his lawyer and respond to the allegations against him, the government appealed the ruling all the way to the Supreme Court to force the case to be refiled in South Carolina. At every stage of this case and the other enemy-combatant cases, the government has overplayed its hand. And the courts have rightly grown suspicious.

At this stage, there is no good reason to keep holding Mr. Padilla in a status that raises so many troubling questions and that risks so much. His intelligence value is exhausted, and he would be as disabled from rejoining the fight in a federal prison as in a military brig. Instead of trying its luck before the Supreme Court, the administration ought to seek congressional legislation to regulate such cases. In the immediate term, it should file criminal charges against Mr. Padilla, if it continues to insist he is a dangerous terrorist. Allowing Mr. Padilla a full opportunity to defend himself in a regular criminal proceeding would not only protect liberties, it would avoid another damaging setback for presidential war powers by the high court.

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