Let me be blunt: if Padilla loses his appeal, this isn't a free country any more. That doesn't mean it's a prison state either, there are many shades of gray in life and it will still be freer than many, but any country where the goverment can grab a citizen off the street, lock them up indefinately in solitary without trial or a lawyer, that's not a free country in my book.
It seems that former head of the Justice Department's Office of Legal Policy Viet Dinh, one of the most hard-core right-wing members of the new conservative legal establishment, agrees, albeit more politely. Patriot Act Author Has Concerns.
Dinh said he believed the president had the unquestioned authority to detain persons during wartime, even those captured on “untraditional battlefields,” including on American soil. He also said the president should be given flexibility in selecting the forum and circumstances — such as a military tribunal or an administrative hearing — in which the person designated an enemy combatant can confront the charges against him.
The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.
“The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to,” Dinh said. “But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated.”
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