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Mr. Padilla in Captivity

Friday, December 23, 2005

JOSE PADILLA'S treatment at the hands of the federal government has been appalling. For 3 1/2 years, the military has held him -- on President Bush's personal order -- as an "enemy combatant" without filing formal charges. For much of that time, it prevented him from speaking to his lawyers. In response, Mr. Padilla has actively sought what most terrorism suspects dread: indictment and prosecution in federal court, so that he at least can meaningfully defend himself. Last month, with the Supreme Court eyeing the case, the Justice Department at long last obliged.

All of which makes the order issued this week by the U.S. Court of Appeals for the 4th Circuit in Richmond baffling. The court tolerated with equanimity Mr. Padilla's detention and, before that, the detention of another American citizen, Yaser Esam Hamdi. In earlier skirmishes in the enemy-combatant cases, it had blocked efforts by Mr. Hamdi's counsel to gain access to him. Yet the court now explodes in anger at the one step the government has taken to normalize Mr. Padilla's status.

Writing for a divided three-judge panel that only a few months ago affirmed the military's power to detain Mr. Padilla, Judge J. Michael Luttig declared that the indictment, the request to transfer Mr. Padilla and the government's stated willingness to have the prior opinion withdrawn "have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court." And he goes so far as to deny the government's motion to transfer Mr. Padilla to civilian custody -- the very move Mr. Padilla has been seeking since he was first whisked out of the civilian justice system.

We sympathize with Judge Luttig's complaints. From the beginning, the government has made tactical concessions that were, to put it delicately, timed felicitously in relation to its litigation needs. Mr. Padilla, we were told, could not be allowed access to counsel without grave risk to the nation -- but suddenly, as his case proceeded on its first trip to the Supreme Court, that risk seemed to melt away, and he was allowed to meet with his lawyer. National security required his continued military detention -- until, with the case possibly heading to the high court again, it turns out that a trial would be okay after all. The court has the right to feel ill used and to express that in strong terms.

Yet to make Mr. Padilla pay for these feelings makes no sense. Mr. Padilla is being held by the military against his will, against the military's will and against the will of the president who ordered him locked up. He cannot defend himself in the civilian justice system as a consequence of an order by the very court system to which he turned in an effort to vindicate his rights as a U.S. citizen.

The order also is dangerous. Indicting Mr. Padilla may well have been, in part, an effort to evade Supreme Court review; if the justices believe that, they may choose to hear the case anyway. But whatever the motive, it is the best thing that has happened in this case since Mr. Padilla was arrested. Indeed, if the desire to avoid an adverse judgment caused cooler heads in the administration to prevail, what is wrong with that? Having a court punish the government for its belated steps back toward regular judicial process will only encourage those within the administration who want to stake out hardline ground and dig in their heels. Mr. Padilla and the military agree that the military should not be holding him any longer. The 4th Circuit has no business second-guessing their judgment.

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