by Matt Barr

Charge Padilla

The District Court for the District of South Carolina ruled yesterday that Jose Padilla, alleged dirty bomb planner, must be charged or freed, and cannot be held as an enemy combatant. Opinion here. "[T]he President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant."

I'll say. This day would have come earlier but for Padilla's original habeas petition being filed in the wrong venue. As SCOTUSblog reports:

This marks the second time that a federal court has found that President Bush lacked constitutional authority to hold a U.S. citizen as an "enemy combatant" for an indefinite period, without legal rights and without any criminal charges filed. The Second Circuit did so in 2003 in an earlier phase of Padilla's case, but that ruling was set aside when the Supreme Court ruled last June that Padilla had filed his habeas challenge in the wrong court.

Not to pick on the New York Times (surely not!), but its report by Neil A. Lewis misses the point on a couple levels.

Mr. Padilla's "alleged terrorist plans were thwarted at the time of his arrest," the judge wrote, adding, "There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing."

I feel confident that Judge Floyd appreciates precisely what was going on, here, and understandably curbed his candor. When you arrest an al-Qaeda trainee who you believe was involved in elaborate plots to attack America, the reason you try to avoid charging him is to avoid his lawyer, and to be able to interrogate him.

The article continues, "Although Judge Floyd's opinion was notable for its sweeping language, its substance was not a surprise..." Its language can fairly be called "sweeping," but see above -- it didn't say everything it could have.

Remembering how we all still felt nine months after September 11, 2001, when Padilla was arrested, you find yourself hoping for a small silver lining: that we got good, useful information out of him that saved innocent lives. But it's to blunt the influence of hopes like that that we have the rule of law. The period on this sentence is that an American citizen is no longer to be held in the Naval brig in Charleston, SC without being charged or tried. It's a good day for liberty.

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