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THOMAS OLIPHANT

Padilla case tests the Patriot Act

WASHINGTON
THE GOVERNMENT'S 11th-hour decision to dump the ridiculous case of accused ''dirty bomber" Jose Padilla on the criminal court to which it should have been referred nearly four years ago is Exhibit A against the Patriot Act as currently written.

The Padilla case is justification for the need for supervision, oversight, and judicial examination of how the government uses extraordinary powers in extraordinary times. Precisely because terrorism is an elusive and therefore especially dangerous enemy, it is doubly important that the government behave responsibly and that its actions receive scrutiny.

Before the rudderless, dysfunctional Congress limped out of town last week, this was the principle behind what would have been a filibuster against an extension of the Patriot Act's major provisions. From the left and right -- uniting senators as diverse as Idaho's Larry Craig and Wisconsin's Russ Feingold -- the purpose of the filibuster would have been to review at least a few provisions, affecting individual rights and freedom, of the law that was enacted in such unseemly haste in the aftermath of the 9/11 attacks.

There's still a chance of success when Congress returns, and the Padilla case is a wonderful example of why supervision is always a good idea where the power of the state is involved.

The Bush administration dumped the case it once trumpeted rather than face Padilla's diligent attorneys before the Supreme Court on a basic question, which they framed with commendable precision: ''Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

The administration was facing a Monday deadline for making its own legal case to the court for the extreme proposition that any American could be held merely on its say so that the person was ''an enemy combatant" in an undeclared war.

To add outrage to a constitutional question with enormous implications, politics has polluted this matter from the instant Padilla was seized upon arrival at Chicago's O'Hare Airport in the spring of 2002, when terrorism fears were still easily inflamed. In a grotesque misuse of his office, then-attorney general John Ashcroft had taken time out during a Moscow visit to hold one of those theatrical press conferences for which he became infamous, designed to portray the apparent Islamist radical as evil incarnate. Ashcroft and his aides did this via one phrase -- dirty bomb -- that suggested the apprehension of someone intent on exploding a device with nuclear components capable of causing mass death.

As an alleged enemy combatant by executive fiat, Padilla was whisked away to military detention, and the government vigorously fought efforts to get him legal representation or to have his case heard in public by a judge. Technically, its argument was that any American could be held in secret and without legal proceedings simply on the unexamined word of a government official that he was ''the enemy."

As has happened before, however, the Bush people blinked as the prospect of a court hearing became more likely. In secret over the weekend, Padilla was transferred to Justice Department control. Now he is charged with working overseas with extremists over the last dozen years to support terrorism. He could still get life in prison if convicted.

Nevertheless, despite all that Ashcroft hyperbole, administration officials are now blithely claiming that the evidence for a specific ''dirty bomb" conspiracy was not worthy of consideration by a trial court after all. The rest of us are supposed to accept its explanation and move on.

Instead, the fitting punishment should be some rewriting of the Patriot Act. Once again, the Bush people are arguing that investigations that resemble fishing expeditions should be tolerated without oversight, judicial or otherwise. The administration wants unfettered power to go after records held by institutions (like hospitals and libraries) in pursuit of suspects or even simply for broader investigative purposes. More alarming, the administration wants unfettered power to send these institutions what are called National Security Letters, not only demanding personal information about citizens and illegal immigrants alike but also insisting that the fact the letters have been sent remain secret under penalty of prosecution.

In confirming a Washington Post story that some 30,000 of these letters have been dispatched since 9/11, officials are unable to cite a single case that justified such a broad dragnet.

The idea that this kind of behavior in a democracy should require some showing to an impartial party of some reason to suspect something is hardly far-fetched and worthy of inclusion in the Patriot Act. It could be called the Padilla Amendment.

Thomas Oliphant's e-mail address is oliphant@globe.com.

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