WHATEVER ELSE HE IS, Jose Padilla is an American citizen. That inescapable fact explains both the Bush administration's decision last week to charge him with a crime -- and the importance of the Supreme Court's upcoming decision on whether to hear his case.
The first decision represents a change in course for an administration still struggling, more than four years after the attacks of 9/11, to find a legal strategy in the war against terrorism. But it is the second decision, due in almost three weeks, that could prove to be more significant to Americans and the rule of law. The Supreme Court needs to rein in the Bush administration's war on the Constitution.
Padilla, who has been in government custody for 3 1/2 years, was captured in May 2002 at a Chicago airport and accused of being a "dirty bomber," plotting to explode a small radioactive device in the United States. Shortly after being captured, he was declared an "enemy combatant" in the war against terrorism and sent to a military brig in South Carolina.
But Padilla challenged the government's right to hold him, a U.S. citizen arrested on U.S. soil, without ever proving charges in a court of law (as opposed to asserting them in a news conference). Facing an impending deadline to answer his petition before the Supreme Court -- and no doubt mindful of an earlier decision requiring it to allow such enemy combatants captured on the battlefield to challenge their imprisonment -- the Bush administration last week filed a criminal indictment against Padilla in federal district court.