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Sacramento Bee Editorial -  February 25, 2004

Wartime excess: High court confronts rights of detainees

The U.S. Supreme Court has agreed to hear arguments about whether the president can designate U.S. citizens arrested in this country as "enemy combatants" and detain them indefinitely without charge or access to legal counsel. Rarely has the court faced a more critical responsibility.

At issue is the case of Jose Padilla, a U.S.-born man arrested in Chicago and accused of conspiring with members of the al-Qaida terrorist group to detonate a "dirty" radiological bomb in this country.

Soon after his arrest in May 2002, Padilla was declared an enemy combatant and sent to a navy brig in South Carolina. He has yet to be charged and, until recently, was denied access to an attorney. Whatever he may have done, denying Padilla due process could set an unsettling precedent for any American whom the executive branch deems to be a danger to this country.

This makes three cases the high court has agreed to take up related to the status of those arrested as part of President Bush's declared war against terrorism. One concerns a U.S.-born Saudi, Yaser Esam Hamdi, who was taken into custody on a battlefield in Afghanistan.

The other deals with some 650 prisoners captured abroad (mostly in Afghanistan) and still imprisoned at the U.S. naval base at Guantánamo Bay, Cuba; specifically, the issue is whether they have the right to challenge in federal court charges that they are members of al-Qaida or the former Taliban government of Afghanistan.

One federal appeals court has ruled that these detainees are not entitled to constitutional protections because Guantánamo Bay is on foreign soil and thus not subject to U.S. laws. If that ruling stands, it would mean that even though the base is totally under U.S. control, it is a legal no-man's-land where U.S. authorities can act arbitrarily with no review by U.S. courts.

Despite differences of detail, all three cases raise a vital question - whether, in time of war, a president has unlimited power to detain people without charge or access to legal counsel and to keep secret all information about detainees' alleged crimes. (Among those detained, and recently released after 14 months, was a 13-year-old Afghan boy who said he was seized while looking for work at a military base.) What gives the question special gravity is that the war on terrorism could in theory last indefinitely, meaning those designated enemy combatants might never be tried or released.

Padilla's case is unique. One federal appeals court has ruled that in cases where a U.S. citizen is arrested here, far from the field of battle, the president has no authority to deny due process. Indeed, one federal prosecutor has said he feels the government is on shaky ground in Padilla's case and that it may ultimately lose it.

That may or may not prove to be the case. What's most important is what the Supreme Court decides. Its ruling could either reaffirm what every civil libertarian believes the Constitution guarantees or carve out a huge exception that could put all Americans potentially at risk of being treated arbitrarily by their government. It is a decision with the potential to shape the course of life in this nation far into the future.

http://www.sacbee.com/content/opinion/story/8333939p-9263989c.html