Enemy of the State

The case of Jose Padilla should be of grave concern to every American.

Also known as Abdullah al-Muhajir, the 35-year-old Brooklyn native was locked up for more than three years at a military prison in South Carolina -- for most of that time without criminal charges, without access to a lawyer, without contact with his family.

Padilla was detained on May 8, 2002, at Chicago's O'Hare airport upon his arrival on a plane from Pakistan. According to reports, he was detained on a warrant issued in New York as a material witness to the attacks of 9/11.

After having him in custody for a month, then-Attorney General John Ashcroft dramatically announced the capture while on a road trip to Moscow, calling Padilla a "known terrorist" who met with Al Qaeda and was "exploring a plan" to build and detonate a radioactive dirty bomb.

The apprehension of Padilla "disrupted an unfolding terrorist plot," Ashcroft said, although no other conspirators who may have been involved in a plot have ever been named or described.

Bush's strategy was to detain Padilla indefinitely in a legal oblivion by declaring him an "illegal enemy combatant," and as such not entitled to the protections of the Geneva Conventions.

Facing an imminent review by the Supreme Court, and a possible smackdown on its fascist practices, the Bush administration scrambled to transfer Padilla out of military custody with charges that he "conspired to murder, kidnap and maim people overseas."

No further mention of dirty bombs, no mention of attacks within the U.S., no mention of meeting with Al Qaeda, no mention of 9/11.

Granted, Jose Padilla may not be a nice person. The media invariably describes him as a former gang member. Padilla was also a small-time criminal, and spent time in prison. He may even have committed crimes and deserves to stay in jail. That isn't the point.

All American citizens have fundamental rights guaranteed by our Constitution -- even unpleasant people we don't like; habeas corpus, due process, counsel with an attorney, the right to hear charges confront the evidence and witnesses against us.

If Padilla committed a crime, he should be charged and have his day in court. That's what any of us expect as a basic right.

Padilla is not the only American citizen held in this Kafkaesque legal limbo. Louisiana-born Yaser Hamdi, another enemy combatant, was captured in Afghanistan. Reports indicate that there may be 200 or more Americans in similar circumstances.

The true tests of the Constitution are the objectionable cases. Polite chit-chat doesn't need First Amendment protection, offensive speech does. The important cases are always extremes that test and explore limits -- gun owners and bible thumpers and marching Nazis and porn peddlers and intelligent designers. These are the cases that define the rights and liberties of every citizen.

If Padilla can be declared a national security risk and detained incommunicado for more than three years -- without charges, without a lawyer, without due process -- then so can any citizen. Maybe you, but mostly I'm thinking about me.

Defending the rights of Padilla defends the rights of us all.