It's Not the American Way

By Richard Cohen

I am obligated as a journalist to use the word "alleged" when writing about Jose Padilla, the former Chicago gangbanger the government says turned terrorist. He allegedly received terrorist training in Afghanistan. He returned to the United States as an alleged al Qaeda operative. He allegedly planned to detonate a dirty bomb and also allegedly hoped to use natural gas to bring down some apartment buildings in New York or another city. There, I have done my journalistic duty.

The government, on the other hand, is not similarly constrained. Although it has locked up Padilla for two years, although for a long time he was held in isolation and not allowed to see a lawyer or anyone else, he has never been charged with a crime or found guilty in a court of law. The worst I can do is libel the man. The government, though, has cast him into the contemporary version of a dungeon.

This is not to say that Padilla is innocent. The government not only maintains he is a dangerous terrorist but now says he has confessed to much of the above -- and, if it matters any, I believe the feds. But while I accept the government's case, I cannot accept the insistence that it can, when it so chooses, keep a U.S. citizen -- and Padilla is one -- detained for as long as it sees fit. If the man committed a crime, then try him. It's the American way.

The Bush administration takes the position that it can hold Padilla, and others it designates as enemy combatants, for as long as it wants, where it wants and, within reason, how it wants. Torture and summary execution are out of the question, the government conceded in April when it argued its case before the Supreme Court -- but not what could amount to life in prison without trial. In fact, until March, Padilla was not even able to see a lawyer.

A lawyer, it turns out, is precisely what the government wanted to avoid. In a news conference this week, James B. Comey Jr., Attorney General John Ashcroft's deputy, outlined a bit more of the case against Padilla and explained why he had been held in isolation and denied counsel for so long. "He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope -- pray, really -- that we didn't lose him."

This is an astounding statement. First, the conjecture that Padilla would have been freed suggests that the government's case is something short of open-and-shut. Second, as we all know from watching "Law and Order," the invariable entry of a lawyer into the interrogation room always complicates the case, often ending the questioning right there and then. Yet, somehow, prosecutors make their case and the bad guys go to jail. Third, this mention of a "constitutional right" as something akin to a pesky regulation that should be nimbly sidestepped is downright troubling. The Constitution is our basic law. It both establishes the federal government and limits its authority. As the song says about love and marriage, you can't have one without the other.

To repeat, I have no evidence to dispute what the feds say about Padilla. But this is the same government that missed repeated warnings that something like the horrors of Sept. 11 was on the way, that was damned sure Iraq was loaded with weapons of mass destruction, that recently detained a Portland, Ore., lawyer on terrorism-related charges because it got the fingerprints wrong, that yelled espionage and treason about a military chaplain later charged with nothing more than having an extramarital affair, that . . . well, you get the picture. There's a reason so many men have walked off death row. Government is not infallible and this government, in particular, is hardly an exception.

I was nearby when the twin towers went down. Hardly a day goes by that I do not think about it. I fear terrorists -- in that they have succeeded. But I also fear a government that takes it upon itself to deprive a citizen -- any citizen -- of his basic rights. That holds for Timothy McVeigh (also a terrorist, no?) or a common street criminal and even an alleged al Qaeda associate like Jose Padilla. It's not just his rights that have been suspended. It's our own.