The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.
"The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to," Dinh said. "But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated."
Padilla was arrested at O'Hare International Airport on May 8, 2002, after arriving on a flight from Pakistan. Initially, he was taken to New York and held as a "material witness," presumably to testify against others.
The following month, he was transferred to a military prison in South Carolina after Ashcroft announced that the government had determined that he was part of an unfolding terrorist plot to explode a radioactive dispersion device, or so-called dirty bomb.
Padilla's lawyers subsequently filed a writ of habeas corpus saying that he was being illegally held. The Justice Department responded by saying that the detention was a proper exercise of the president's wartime powers. A decision is pending before a federal appeals court in New York.
