June 13, 2002

The Washington Post's second editorial

The Washington Post's second editorial on the civil liberties implications of indefinite detention of American citizens like Padilla is right on the money:

International law permits the detention of captured enemy soldiers, even those who have committed no crimes, and it would be reckless of the government simply to release people bent on detonating dirty bombs. The question is not whether the government can detain an enemy combatant bent on doing America great harm but whether it can designate anyone it chooses as such a person without meaningful review.

The government's position would be easier to swallow were it not actively seeking to frustrate judicial review of the president's designations. When the government detains a citizen as an enemy combatant, that person must be permitted to consult with counsel and challenge the lawfulness of the detention in court. Without that, every citizen is at the mercy of presidential whim. Formally, the government recognizes that federal courts have jurisdiction to consider the legality of detentions -- including military detentions -- in this country. Yet in Mr. Padilla's case -- as in that of Yaser Esam Hamdi, another detainee with likely citizenship -- it has thrown procedural obstacles in the way of efforts to adjudicate detentions. After whisking Mr. Padilla to military custody in South Carolina from civilian custody in New York, it has prevented him from consulting with the lawyer who had been appointed to represent him. Similarly, the government refused to let Mr. Hamdi meet with a federal public defender interested in representing him. And when that lawyer sought to file a case on his behalf anyway, the government then contended in a Kafkaesque twist that, having had no prior relationship with Mr. Hamdi, the lawyer could not do so.

The idea of indefinite detentions of Americans who have not been convicted of any crime is alarming under any circumstances. Without the meaningful supervision of the courts, it is a dangerous overreach of presidential power. If such a thing were happening in any other country, Americans would know exactly what to call it.


The "enemy combatant" category is a legitimate one, but when it comes to US citizens there ought to be some sort of civilian legal procedure for determining this status in order to ensure that it is applied justly and non-arbitrarily. Michael Kelly is, for once, dead wrong when he says that batting around such concerns about civil liberties is a needless "ritual" that should be dispensed with. On the contrary, vigilance against government over-reach is always necessary. I believe the government could make a good case that an al Qaeda member like Jose Padilla ought to be detained as an enemy combatant. It's not too much to ask that they be required actually to make it.

Posted by Dr. Frank at June 13, 2002 12:52 PM | TrackBack