In 2002, Jose Padilla was arrested at Chicago O'Hare Airport on return from Pakistan. He found himself taking an unexpected trip south. For over two years now, on the orders of President Bush, Padilla, a U.S. citizen, has been detained incommunicado in a South Carolina naval brig on suspicion of a plot to detonate a dirty bomb. He has yet to be charged for the crime. As an "enemy combatant," Padilla has not been permitted to see his family and was not permitted to meet with a lawyer for 22 months. When, at last, such a meeting occurred, it was limited to one day and was monitored, violating the right of attorney-client privilegeonly one in a laundry list of rights violated during Padilla's two-year pleasure cruise south of the Mason-Dixon line.
Proponents of the "enemy combatant" category, and the executive liberties that ride on it, argue that the court rights of citizens are too good for terrorists. Yet without such rights, it's impossible to know if Padilla is a true threat or not. Ed Yohnka, of the American Civil Liberties Union of Illinois, argues that "if Jose Padilla is a criminal or terrorist, we should charge him, we should try him, and we should punish him"the same dynamite formula that's been serving the States since their founding. It's unclear why Padilla should be treated any differently from John Walker Lindh, for instance, who was swiftly tried and convicted as a citizen, despite his terrorist affiliations, and despite his equally unsavory credentials. One might debate the details of his hearingits jurisdiction, media presence, etc.but at the bare minimum, the right of a U.S. citizen to be informed of the charges against him and to have his day in court should not be negotiable.
Padilla is not a sympathetic character, particularly in light of post-9/11 fears, and it may be difficult to connect his position with our own. Still, if his detention without trial is permitted to stand, there is no legal barrier to any citizen, however upstanding, being labeled as an "enemy combatant" and held indefinitely without access to counsel, on the singular authority of the Commander in Chief. Regardless of your opinion of President Bush, such broad authority poses a frightening prospect.
Judicial review is intended to blunt such executive excessbut then again, President Bush isn't known for his esteem of the courts, whether activist or, more accurately, active at all. Theodore Olson, Bush's court lawyer, has argued that, "the courts have no jurisdiction to evaluate or second-guess the conduct of the president and the military."
Justice Stephen Breyer, who was awake during 10th-grade civics class, counters that, "it seems rather contrary to the idea of a Constitution with three branches that the executive would be free to do whatever they wantwhenever they wantwithout a check."
Second-guessing the executive branch (and the legislative) is precisely the role of the courtsand next week, as the Supreme Court takes on Rumsfeld vs. Padilla, one hopes they'll reaffirm that both for Padilla, and for their own self-respect.