His day in court

This wasn't supposed to happen here

[Reprinted from Issues & Views February 16, 2004]

Last December, a federal appeals court ruled that even a President does not have the power to detain in military custody an American citizen arrested on U.S. soil. The judges were ruling in the case of Jose Padilla, who was arrested in 2002, as a suspect in a bomb plot. Padilla has been denied access to an attorney throughout the multiple months of his incarceration. The judges ordered that Padilla be released within 30 days or, "The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him." The U.S. Department of Justice appealed the ruling to the Supreme Court, and Padilla has not been released.

This month, however, the Pentagon announced that Padilla will be allowed some degree of access to a lawyer. Responding to this news in an editorial, The Oregonian newspaper (2/13/04) questions government actions that first "snatched up" a citizen and held him without charges or the prospect of a fair trial. "Getting limited access to a lawyer after 21 months in military custody is not exactly justice when you're a U.S. citizen living under the Constitution. . . . Padilla deserves a day in court. If the government has no case against him by now, the man should be freed."

The Cato Institute, along with several other organizations, filed a friend-of-the-court brief in behalf of Padilla, in an effort to force the Bush Administration to recognize Padilla's rights. Cato Senior Fellow Robert Levy explains:

The administration deserves some credit for making the right decision. But that decision should have been made long ago. The executive branch cannot unilaterally declare that a U.S. citizen is an enemy combatant, whisk him away, detain him indefinitely without charges, deny him legal counsel, and prevent him from arguing to a judge that the whole thing is nothing but a mistake.

Padilla may deserve the treatment he is receiving. Yet that is not the point. He is protected by the U.S. Constitution, which is no small matter. The administration's rationale for permitting him to see an attorney is that the military's interrogation will not be compromised. The proper rationale, of course, is that Padilla is entitled to an attorney because there is no other way for him to exercise his constitutional right to habeas corpus, which only Congress may suspend, and which Congress has not suspended.

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