Mr. Padilla's Hearing
Washington Post Editorial
Sunday, November 23, 2003; Page B06
AT LAST, a federal appeals court has treated the government's assertion of an unbridled power to detain U.S. citizens with the skepticism it deserves. Last week in New York, the U.S. Court of Appeals for the 2nd Circuit heard oral arguments in the case of Jose Padilla, an American citizen arrested domestically by civilian law enforcement who has been held incommunicado for the past year and a half as an "enemy combatant." The government believes that Mr. Padilla was planning a "dirty bomb" attack on behalf of al Qaeda. Since being whisked into military custody in May 2002, he has not been allowed to speak even to his lawyers or to respond in any forum to the allegations against him. The claim of essentially unchecked executive power to lock up American nationals is perhaps the single most dangerous position the Bush administration has taken since the Sept. 11 attacks. So the evident difficulty the three-judge panel had with the government's position is welcome.
Unfortunately, the judges focused on the wrong aspects of the government's assertion. They aggressively questioned whether the military has the authority to hold a citizen as an enemy combatant at all. This is a question the Supreme Court has long since answered. The laws of war and the American constitutional tradition alike recognize that part of fighting wars is capturing soldiers on the other side. A decision that Mr. Padilla, even if he admitted to being an al Qaeda fighter, could not be detained would in effect be a judicial denial that America is at war. Such a decision, in addition to being wrong, would constitute a Pyrrhic victory for civil liberties, for it would invite quick reversal by the Supreme Court and thus risk validating the military's alarming behavior.
The problem here is not that Mr. Padilla is being held as an enemy combatant; it is that the government is denying him any meaningful process for examining the accuracy of its allegation. This is particularly troubling in the context of a potentially perpetual conflict against a non-state, transnational enemy, one in which distinguishing combatants from innocents can be difficult. Mr. Padilla is being imprisoned indefinitely on the basis of the president's say-so alone. But what if an enemy combatant designation were the product of some tragic mistake? What if it were made maliciously? No court could provide relief, because no court would even know whether Mr. Padilla admitted or contested the allegations against him.
In the lower court, Chief Judge Michael B. Mukasey struck a delicate balance to which the appeals court should pay heed. If Mr. Padilla is really an al Qaeda operative, Judge Mukasey wrote, his detention as an "enemy combatant" is lawful. But the courts cannot simply accept the government's word. An American citizen must be able to respond to the government's allegations and must have some access to counsel in order to do so.
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