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RIGHTS AND THE NEW REALITY

A Day in Court--for All

June 14, 2002

Government's first duty is to protect its citizens, and keeping a terrorist from devastating an American city with a nuclear device certainly fits the bill. So we're grateful that federal agents tailed Chicago gangbanger-turned-Muslim extremist Jose Padilla and arrested him long before he could do what the government says he intended: explode a "dirty" bomb capable of spewing radiation.

But Americans must always temper their gratitude with skepticism. They believe in this democracy because, with very few exceptions, the Constitution demands that it go about its business in full public view. This openness is the only way to guarantee individual rights--including the rights of the accused.

When Atty. Gen. John Ashcroft revealed this week that Padilla had been arrested May 8, he was also disclosing that for more than a month the government had kept an American citizen--and the democratic process--in a dungeon of secrecy.

Forget, for a moment, the thousands of immigrants and foreign visitors detained since Sept. 11, many held secretly and for months before getting a hearing. Padilla is a U.S. citizen. Yet at the direction of President Bush, the Justice Department has again cut constitutional corners.

Padilla was arrested as a material witness. Federal agents also subpoenaed him to testify before a New York grand jury investigating the terror attacks. When Padilla reportedly refused to testify, Bush, relying on the president's war powers, declared him an "enemy combatant."

As such, Justice Department officials contend, Padilla can be held indefinitely--or until the war on terrorism ends (which is to say, indefinitely). He need not be charged with a crime, and he hasn't been. The government transferred him to a South Carolina military brig without his lawyer's knowledge, and her efforts to see him have been unsuccessful. The government claims that it need not hold a hearing to present the evidence against Padilla or allow him the right to contest his combatant designation. In short, by presidential fiat, the Constitution no longer applies to Padilla.

But that's not how we do things in this country, in large part because we don't trust the government unless we can see what it's up to. In this case, that would mean, at the very least, granting Padilla his right to know the charges against him and to mount a defense before a judge. Indeed, that's how the government is proceeding against another U.S. citizen, John Walker Lindh, who was caught on the battlefield in Afghanistan. And that's how it's proceeding against Zacarias Moussaoui, a French national and alleged terrorist, who will also be tried in federal court.

Americans are willing to make sacrifices for security. But if Padilla can be held in secret for as long as it takes to make him talk, his constitutional rights suspended or bent to fit investigators' immediate goals, then the government can similarly abuse the rights of any American citizen. That's too big a sacrifice.

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