Bush Jailing Citizens Indefinitely - Give Padilla due process: Charge him with a Crime or Let Him Go

A South Carolina federal judge has clearly identified the options for the Bush administration's handling of Jose Padilla: charge him, release him or appeal. The Department of Justice, which labeled Padilla as an "enemy combatant," has held him in a naval brig for two years without filing charges against him. The problem is, Padilla is an American citizen entitled to constitutional protections. U.S. District Judge Henry Floyd has ruled that "the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant." The Justice Department plans an appeal. There's no question that law enforcement sensibilities changed after the Sept. 11 attacks on America. But as Floyd has ruled, neither federal law nor case law gives the president unchecked power to jail a citizen indefinitely without access to basic constitutional safeguards. Although it is dangerous to speculate about the government's evidence against Padilla or what information Padilla has provided the government on possible terrorist plots, the fact remains that Padilla is an American arrested at Chicago O'Hare Airport. Initially, U.S. officials said Padilla had planned to explode a so-called "dirty bomb" inside the United States. Last summer, the Justice Department released a report that said Padilla had trained with an explosives expert in Afghanistan and he had been assigned to blow up apartment buildings in the United States using natural gas. The government has been tight-lipped about Padilla, but it would appear, from the little that has been made public about him, that some sort of criminal charges could have been filed long ago. The Supreme Court will have the ultimate say in this matter, but some members of Congress have grown weary of the Bush administration's contention that it has the right to hold alleged enemy combatants in the war on terrorism for "the duration of hostilities," as Attorney General Alberto Gonzales told members of the House Appropriations Committee last week. The problem with Gonzales' assertion is that the war on terror is ongoing. When, then, would Padilla's captivity end? All Americans expect the government to do all it can to prevent a repeat of Sept. 11, 2001. But, as Floyd's ruling suggests, nothing in the law supports sacrificing individual liberties in the name of homeland security. Originally published in the Deseret Morning News (Salt Lake City) March 8, 2005.

• The power assumed by the U.S. military and the Bush administration in the Padilla case constitutes what is arguably the most ominous and dangerous threat to the freedom of the American people in our lifetime. [more]