Padilla, also known as Abdullah al Muhajir, is a former gang-member with an extensive rap sheet. The government claims he was participating in a plan that could have killed a great many innocent people. I will stipulate, as the lawyers say, that Padilla appears to be a very bad guy.
OTHER IDEAS. He is also an American citizen. And -- war on terrorism or not -- he deserves certain basic rights, including the right to a lawyer, the right to know the charges against him, and the right to a trial. The Bush Administration has another idea: It wants to keep Padilla in solitary confinement indefinitely, stripped of all his legal rights. The Justice Dept. candidly acknowledges it isn't interested in ever charging him with anything. It just wants to keep him locked up so he can't hurt anyone.
The government will give foreign nationals, such as French citizen Zacarias Moussaoui, the right to a trial. American John Walker Lindh, who was captured in Afghanistan, will also get a trial. But American citizens such as Padilla and Yaser Hamdi, another U.S. citizen captured in Afghanistan, have no rights at all. This is very dangerous.
Don't get me wrong. I spend much of my day in an office just blocks from the White House and the Capitol. If somebody does succeed in pulling off another big terrorist attack, there's a pretty fair chance I would be a victim. Thus, I'm very happy that the government is working overtime to stop another September 11.
Attorney General John Ashcroft has cut way too many corners here, however. We have a legal system in the U.S. that has worked pretty well for most of the past 220 years. The government gathers evidence against an alleged criminal. If the evidence is sufficient, the government charges him with a crime and tries him. And, if he is convicted, he is punished.
HONEST ABE? Every so often -- usually in times of war -- the government decides to ignore the rights of those it thinks are a threat to the nation. It always seems like a good idea at the time. I'm sure it did when the Roosevelt Administration locked up tens of thousands of Americans of Japanese descent during World War II, or when President Lincoln detained thousands of citizens without trial during the Civil War.
In a series of orders from 1861 to 1864, Lincoln gave local and military authorities the right to arrest whomever they saw fit, simply based on vague allegations of disloyalty to the Union. In what historian Mark Neely calls "the lowest [point] for civil liberties in all of American history," the government arrested at least 354 civilians in just one month, from Aug. 8 to Sept. 8, 1862. Newspaper editors were arrested for opposing the war. Ordinary citizens were thrown in jail based on anonymous tips from political enemies or even from angry neighbors looking to settle old scores.
Justice takes the view that, this time, it's different. That's what the government always says in times of war. In his dramatic June 10 press conference, Ashcroft claimed that Padilla's arrest "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." But as the story has unfolded in the days since, there appears to much less to it than Ashcroft first suggested. Padilla, Administration officials now say, may have just been scouting out possible targets. There was no dirty bomb and there is no evidence that Padilla knows how to build one.
EIGHT-MONTH ORDEAL. It's easy to say that Padilla must have done something that has really concerned Justice. After all, the government wouldn't have arrested him if he hadn't. But just days after Ashcroft's dramatic allegations, the government released a Boston cab driver it had held in solitary confinement without charges since last Sept. 18. The cabbie was also supposed to be a major terrorist. But after eight months in jail, the feds conceded he was just a guy who broke some immigration laws. The government does make mistakes. That's exactly why we have trials.
The Administration has been strenuously trying to paint Padilla as a cross between Al Capone and Carlos the Jackal. If he is, Justice should charge him, try him, and convince a jury to convict him. If he isn't, or if the government bungled the case by arresting him before it had enough evidence to get him convicted, the U.S. has an obligation to let him go. That may be awkward. But it's the way we do it in this country. Gleckman is a senior correspondent in BusinessWeek's Washington bureau. Follow his views every Tuesday in Washington Watch, only on BusinessWeek Online