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.”
Dinh first flagged his concerns in a speech he gave in September at a human rights conference in The Hague sponsored by the Organization for Security and Cooperation in Europe. He reiterated them this month during a panel discussion with Chertoff and others on national security and civil liberties at the conference in Philadelphia.
“The person next to me said, 'My God. He is saying that the Padilla case is wrong!' ” said Philip Heymann, a Harvard Law School professor who also sat on the panel in Philadelphia and who agrees that the administration view in the case is wrongheaded.
“There has to be some form of judicial review and access to a lawyer,” said Heymann, a deputy attorney general in the Clinton administration. “That is what habeas corpus was all about. That is what the Magna Carta was all about. You are talking about overthrowing 800 years of democratic tradition.”
I remain naively faithful that Padilla will win in the end. But if not…if not…then what do we do?