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Undermining due process

HARD CASES make bad law. If ever there has been a paradigm for that maxim, it is the case of United States v. Jose Padilla.


Padilla is a US citizen arrested on US soil almost two years ago and declared by President Bush to be an "enemy combatant." Although no charges have been filed, Padilla has remained in a military brig, largely incommunicado.

The US Court of Appeals for the Second Circuit declared in December that the president lacks the inherent authority to detain a citizen in this fashion, thereby leading to an appeal to be heard by the Supreme Court in April.

The notion of incarcerating a US citizen for a prolonged period, without filing charges, runs so counter to well-established constitutional rights as to be almost unimaginable.

That is, until one hears the unofficial complaint against that citizen: the intent to deploy a "dirty" radioactive bomb inside the United States. Faced with the prospect of such a heinous act of terrorism, Padilla's rights appear to pale against the horrifying backdrop of the deaths of an untold number of his fellow citizens.

That one who is a citizen of this country may nonetheless be an enemy of it is indisputable. The laws of treason teach us that much. The government's argument goes further, however, and assumes that the citizen qua enemy is stripped of rights otherwise guaranteed by the Constitution, most notably the right to a presumption of innocence until proven guilty.

In a time of war, the Department of Justice contends, the need to protect innocent citizens essentially trumps the constitutional rights that apply in times of peace. The argument carries great emotional weight. The threat of a "dirty" bomb within our borders inclines us to understand the value in placing homeland security ahead of individual rights, and the lives of the many over the constitutional rights of the few.

Not so fast. There is one enormous fallacy in this argument, which tips the scales in favor of granting Padilla the process that he seeks.

For more than 200 years, the United States has had a well-functioning mechanism to ensure that every individual's rights are protected, whether perpetrator or innocent victim. I speak, of course, of proceedings conducted by our Article III judges, the judges of the US District Courts and Courts of Appeals. No judiciary is more revered worldwide for its fundamental fairness, and no group is better suited to perform the delicate balancing of the rights at issue. Indeed, that balancing is the role that the Constitution envisions that they shall perform.

Padilla's situation demonstrates, at its foundation, an unwillingness on the part of the president and the Department of Justice to allow the judicial branch to perform its constitutionally mandated role.

That one branch lacks confidence in the other in this important context is disappointing. More important, it is unwarranted. To prove that point, one need only look to the balanced handling of the Richard Reid "shoe bomber" case by Chief Judge William Young of the US District Court in Boston.

Reid, a noncitizen enemy combatant who admittedly attempted to blow up a trans-Atlantic jet, experienced far swifter justice and a greater protection of rights than has Padilla, a citizen who (truthfully or otherwise) denies the allegations against him.

Battlefield conditions pose a different set of circumstances from those raised here. Padilla was arrested and incarcerated on US soil, where judges were readily available to consider his case.

If the entire United States is the battlefield for purposes of the war on terror, every citizen is now subject to the same threat of arrest and incarceration. In denying our federal judges the opportunity to serve in precisely the role that the Constitution intended, the Department of Justice and the president are not merely affecting the rights of a single individual, who may prove to be the scum of the earth. Rather, they are undermining every citizen's rights in the process. Rights that are denied to Padilla today may be denied to you or me or our children tomorrow.

That is the nature of precedent, and that is a price we cannot afford to pay.

Joan A. Lukey, a past president of the Boston Bar Association, is a senior partner at Hale and Dorr LLP in Boston.

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