Three Years Late

Wednesday, November 23, 2005

THREE AND A half years after his arrest, the government has finally brought criminal charges against Jose Padilla. It's about time. Ever since President Bush ordered Mr. Padilla yanked out of the criminal justice system, his case has represented needless and self-defeating excess in the legal war on terrorism. Restoring him from military custody to federal court, therefore, is a big step forward. Instead of holding an American citizen in a peculiar legal limbo, the government is again doing something it does every day: prosecuting an alleged bad guy for breaking the law.

The charges do not repeat the administration's initial allegation that the former Chicago gang member, who has been held since May 2002 as an enemy combatant, was an al Qaeda operative plotting a radiological "dirty bomb" attack in Washington. Nor does the government charge-- as it later alleged -- that Mr. Padilla was planning to blow up apartment buildings using natural gas. Because of Mr. Padilla's long detention and interrogation without access to his lawyers, proving any charges related to these underlying allegations -- even if they are true -- would probably require the use of evidence that any court would deem tainted. Instead, the Justice Department has charged him with supporting terrorism and more general participation in a conspiracy to kill and maim overseas -- charges that officials apparently believe that they can prove without reference to what Mr. Padilla has told his military interrogators. These charges are less spectacular, but they are still serious.

Critically, they give Mr. Padilla an opportunity to defend himself under the known rules of the justice system. The government may at some time need to hold as an enemy combatant an American citizen who is fighting for the other side in a war but who, for one reason or another, cannot be tried in federal court. But it never needs to do what it did in Mr. Padilla's case -- that is, deprive someone of counsel and of any ability to defend himself after arresting him in a civilian setting in the territorial United States. And it should never perpetuate enemy-combatant status past the point of its necessity -- as it did here.

The Padilla case was not only offensive to the principles of a free society; it also dangerously gambled with the very executive powers the administration was seeking to defend. The Supreme Court rebuked the military in the related case of Yaser Esam Hamdi, and a majority of justices intimated that they viewed Mr. Padilla's detention with suspicion. Yet the government continued to litigate the matter. Only with Mr. Padilla's case heading once more to the high court, where the military might well have faced another setback, did the government move to regularize his status.

Dumping Mr. Padilla back in federal court cannot undo the lengthy detention-without-charge that he has endured. But it does help to reestablish the principle that no one can be held indefinitely based only on allegations by the executive branch. The public at long last will see what evidence the government can muster to prove that Jose Padilla is a dangerous terrorist, and a jury will decide whether that evidence justifies his incarceration.

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