Detainment sans trial runs counter to Constitution

CNJ staff

The only question for an advocate of traditional American liberties should be “Why did it take so long?” when it comes to the case of Jose Padilla.

Padilla, a U.S. citizen, was arrested as a terrorism suspect at Chicago’s O’Hare Airport on a flight from Pakistan about 2 1/2 years ago. A federal judge in South Carolina recently told the government either to charge him with a crime or release him.

That should have been a no-brainer call made two years ago. A key aspect of a free society is the government can’t put people in prison without at least charging them with a crime. But Robert Levy, a constitutional scholar at the Cato Institute, predicted the government will appeal — again — just to keep Padilla imprisoned for as long as possible.

Perhaps more troubling is that Attorney General Alberto Gonzales, in a congressional hearing after the court decision, continued to defend the government’s decision to jail Padilla and argued that the government has the right to detain alleged enemy combatants “for the duration of the hostilities.”

That might just be defensible if the government had declared war, but it hasn’t.

When Padilla was arrested, the government said it had evidence he was part of a plot to set off a radiological “dirty bomb” in the United States and had trained with al-Qaida in Afghanistan. But instead of charging him with a crime and trying him, it declared Padilla an “unlawful combatant,” sent him to a military prison and denied him access to an attorney.

He eventually got an attorney to represent him and his case went to the Supreme Court. The high court punted, saying he should have brought his suit in South Carolina rather than New York.

When it decided the similar case of Yaser Hamdi, who was actually apprehended on a battlefield, however, the Supreme Court made it clear that even in wartime, so long as courts are operating, the executive branch can’t detain U.S. citizens indefinitely without any semblance of due process.

That should mean Padilla will be released unless charges are brought.

The government should either file charges or let him go. It has already spent too much of the taxpayers’ money trying to defend a breathtaking assertion of absolute power that has no place in our constitutional system.