Posted on: Monday, March 17, 2003

EDITORIAL
Is our greatest threat from within or without?

If a federal judge in New York City has his way, Jose Padilla might get to see a lawyer, although it doesn't sound as if it will do him much good.

The federal government alleges that Padilla, also known as Abdullah al-Muhajir, met in Afghanistan with senior al-Qaida officials, then entered the United States to advance plans to detonate explosive devices.

Although such an idea is frightening, to date the government hasn't produced evidence to show that Padilla had any clue how to turn the concept into a genuine threat.

Padilla is a U.S. citizen, born in Brooklyn, who has been held for nine months in a Navy brig. He's never had a hearing. He's never been charged. He's been denied a lawyer to even challenge his detention, let alone the allegations against him. How does the Justice Department justify this treatment?

"In times of war," said a department spokeswoman, "the president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives."

By "act," the department evidently means total suspension of a citizen's constitutional rights.

And who says we're at war? The Constitution says only Congress has the power to declare war, and that hasn't happened since December 1941.

Federal Judge Michael Mukasey has ruled that the government must agree to conditions for a meeting between Padilla and his lawyers. But that might not help Padilla much. If he and his lawyers were to offer a habeas corpus submission to the court "and then lost in short order, as he well might," said the judge, "the assured hopelessness of his situation would quickly become apparent to him."

Padilla might "then seek to better his lot," said the judge, "by cooperating with his captors."

The Justice Department says these extraordinary measures are needed "in light of our duty to take all steps possible within the law to protect the American people."

Protect them from what? The government may eventually show that Padilla is indeed dangerous. If so, he should be tried for his crimes.

But we may be in more immediate need for protection from the Justice Department. There appears to be nothing preventing Padilla's detention for the rest of his life, without recourse.

Since the government needs no proof, why can't it, acting arbitrarily, do the same to any of us?

This is a particularly slippery slope we are on.