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By Howard Gleckman Imagine for a moment, federal agents hustle you off an airplane and take you...somewhere. You're locked up for two years. You're never charged with any crime. You're never allowed to see a lawyer or communicate with your family. The Justice Dept. will never charge or try you. Instead, it intends to keep you imprisoned indefinitely.
The stuff of a cheap paperback novel? Can't happen here? Actually, it has.
Sometime in the next month, the U.S. Supreme Court will decide the case of Jose Padilla. The decision will mark an important test of the Constitutional protections Americans have enjoyed for most of the past 220 years against abusive, arbitrary action by government officials. It's no overstatement to say that if Padilla loses, many of the rights all Americans take for granted will be in jeopardy.
CHANGING STORIES. By most accounts, Padilla isn't a nice guy. Once a member of a Chicago street gang, he may later have trained with Osama bin Laden's al Qaeda. The Bush Administration first claimed Padilla was plotting with Muslim terrorists to detonate a "dirty bomb" -- a low-level radioactive explosive -- somewhere in the U.S. Now, the government says he was plotting to use natural gas to blow up apartment buildings in New York and Washington.
Is the feds' latest version of the story true? Who knows? But even if their claims are credible, Padilla should have the right to defend himself in court. The American legal system is designed to guarantee such due process for all citizens, even those suspected of being terrorists.
The Bush Administration believes that it alone has the right to decide who is protected by the legal system. Which brings us to Brandon Mayfield, who's a pretty lucky guy, all things considered. Luckier for sure than Padilla.
WAY OUT OF LINE. Mayfield is a lawyer from Aloha, Ore. Like Padilla, he's an American citizen who converted to Islam. And, like Padilla, he was accused of being involved in a bombing plot. In some respects, the allegations against Mayfield were even more serious. The FBI claimed that a fingerprint found on an explosive device used in last March's Madrid train bombing -- which killed 191 people -- was Mayfield's. As a result, he was arrested and held for two weeks as a material witness.
But, unlike Padilla, Mayfield had access to the legal system. He retained an attorney and invoked his right to due process. And thanks in part to his aggressive defense counsel, the FBI was forced to admit it had the wrong guy. The fingerprint on which the government held Mayfield for two weeks...well, it wasn't his. A judge ordered Mayfield released immediately.
The government was way out of line in Mayfield's case. It leaked word of his arrest to the media, trashed his reputation in public, and by holding him as a material witness, it tried to limit his legal rights. And why did it take two weeks for the FBI to correctly read a fingerprint in such a high-profile case. Still, Mayfield's ordeal was over in two weeks, while Padilla remains locked up after two years.
TAILS WE WIN... Does that have to do with the fact that Mayfield is white and middle class, while Padilla is Hispanic and poor? It wouldn't be the first time.
With Kafkaesque logic, the Bush Administration now argues that it should be allowed to hold Padilla indefinitely because it doesn't have the evidence to convict him in court. Think about that: The government will try you only if it can convict you. If it can't, it will simply keep you locked up. Saddam Hussein himself would be proud of such a system of jurisprudence.
If Padilla conspired to commit terrorism, the government should prove it, get a conviction in court, and lock him up for as long as possible. If it can't, it needs to let Padilla go. American men and women are dying every day in Iraq to help establish a free and democratic nation. If Americans want to preserve their own freedom, Padilla -- like every other citizen -- deserves the right to the legal system. Gleckman is a senior correspondent in BusinessWeek's Washington bureau. Follow his views regularly in Washington
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