To anyone who has spent his entire career in the criminal courts in peace and in war (Vietnam) as prosecutor and defense attorney, where it is taken for granted that anyone arrested will be brought to court the next day and advised of the charges and provided with an attorney at no cost if he cannot afford one, it seems bizarre and unworldly to think of an American citizen arrested by American authorities who is held for three-and-one-half years without being brought to court, and with the United States of America fighting all the way to the Supreme Court, twice, to avoid having to bring the suspect to court.
What happened to habeas corpus? Isn't the Great Writ the one that holds the key to the jail cell door?
Well, that's what got Jose Padilla, the American citizen in question, into court in the first place, where the Supreme Court ruled that the president did not have a blank check even in the war on terrorism since the 9-11 attack on the Trade Center in New York.
But then the conservative Fourth Circuit U.S. Court of Appeal ruled in favor of the government and against Padilla, who now petitions the U.S. Supreme Court. At issue is whether the president's constitutional war powers include the right to designate a suspect an "enemy combatant," which is somewhere between a criminal and a POW (prisoner of war). We speak in terms of employing a criminal law model and a POW model for dealing with people who commit crimes against, or make war against the United States. Both of these were generally thought to be the exclusive alternatives fully occupying the field of what to do with those who struggle against the nation. But, apparently, there was room for the president to argue that there was a third alternative, that of "enemy combatant," by which neither the criminal law nor the Geneva Conventions applied when it came not to battlefield soldiers in uniform fighting under what we see as a legitimate command structure, but as a plainclothes terrorist who is no better than a spy or saboteur. In fact he is a saboteur, if, as in Padilla's case, he was plotting to plant a "dirty" atomic bomb on U.S. soil.
Spies and saboteurs are not afforded full military rights upon capture, but typically have been subject to prosecution in the civil courts, criminal division. Soviet atom spy Rudolph Abel was convicted of spying in New York, sentenced to life in prison and was later repatriated in a prisoner exchange for shot-down American U-2 pilot Gary Francis Powers in 1961 or so. That shoot-down marked one of the notable Cold War experiences where President Eisenhower traveled to Paris to meet Soviet Premier Khruschev in a big summit meeting. Ike had publicly denied that we had lost any pilot-spy over Soviet territory. Powers, however, after being hit by a surface-to-air missile, parachuted and survived, foregoing the suicide pill he'd been provided with. His identification papers were found with him. Khruschev was able to make a liar out of Eisenhower and that killed the summit in Paris. We weren't used to seeing egg on the face of our presidents. It's been non-stop presidential egg-on-face for lying ever since from Nixon ("I am not a crook," resigned in disgrace), to Clinton ("I did not have sex with that woman." Impeached in disgrace.) to Bush-43 ("There's WMD!" when there wasn't; waiting for the axe to fall as his ratings plummet with the insurgency in Iraq).
The LA Times has an editorial pointing out the importance of the Padilla case and why the U.S. Supreme Court should take up his petition for certiorari, below:
To moot Padilla's new petition, the United States, after 3 1/2 years, has now filed criminal charges.
Antici