This is a tense time, not the ideal time to be coming to the defense of a suspected terrorist or terrorist sympathizer, but it must be done.
Jose Padilla, an American citizen, remains in federal custody. He continues to be held incommunicado. He has not had contact with family; more important, he has not had contact with a lawyer since shortly after he was taken into custody.
Padilla may well be a man only a mother could love. He is a Chicago gang member and petty criminal who converted to Islam while in prison. Arguably, he has had some kind of contact with elements of Al-Qaida.
But he is also an American citizen, born in Brooklyn, N.Y., and the day that happened some 31 years ago, the Constitution of the United States gave him certain rights. He has the right to legal council. He has the right to know the charges against him.
The government says he was plotting to explode a "dirty bomb" in the United States, but has never offered proof of this nor produced any explosives or radioactive material. And he has never been charged with that offense or any other in connection with his current incarceration.
Held for 10 months
He was arrested last May 8 in Chicago as he returned from Pakistan, and held initially as a material witness, during which he was able to see a lawyer. On June 9, he was classified an enemy combatant and has been held incommunicado ever since at a Navy brig in South Carolina. The evidence that he was an illegal combatant was a terse, uninformative memo from the Pentagon that Padilla, having no access to a lawyer or a judge, was unable to challenge.
The other day, Padilla won a minor legal victory. A Manhattan federal district judge, Michael Mukasey, reaffirmed his earlier ruling that the government had to allow Padilla access to lawyers. And, he testily warned the Justice Department, his ruling was not an "an invitation to conduct a further 'dialogue,' " but a judicial determination.
But Mukasey's ruling only provides Padilla with access to lawyers for the purpose of challenging the facts of the government's assertion that he is an illegal enemy combatant. This categorization has murky roots in a World War II-era Supreme Court case and to allow the Justice Department to invoke it virtually at will is, well, un-American.
The Constitution should not be one of the casualties in the war on terrorism.