Opinion: A matter of basic due process

One of the most disturbing aspects of the Bush administration's war on terrorism is the way it has kept some suspects from the legal system. Unlike John Walker Lindh, Zacarias Moussaoui and Richard Reid, the alleged shoe bomber, who were all duly charged and given access to lawyers, the government is keeping two Americans in military brigs, without formal charges and cut off from all communication with the outside world. Yaser Esam Hamdi and Jose Padilla are both being held as "enemy combatants" by the Defense Department. It says it can hold them indefinitely. The department maintains that Hamdi and Padilla should be given no opportunity to rebut the government's allegations against them, a startling position that essentially calls for the suspension of the Bill of Rights.

Attorneys for both men are in court challenging the legal limbo they are in. But they are operating at a severe disadvantage because the government has so far blocked them from seeing their clients. That situation seemed to have been resolved, at least for Padilla, late last year when a federal judge in New York ordered the government to allow a lawyer for Padilla to meet with him under tightly controlled conditions. The government, however, has refused to comply. This month, it was back before U.S. District Judge Michael Mukasey warning him of the grave national security implications of such a meeting.

The government now claims that Padilla, the so-called "dirty bomber" who was arrested in May in Chicago as a material witness before being transferred to a Navy brig in South Carolina, is a "critical intelligence resource." Interrogations would be compromised, according to the Defense Department, if the relationship of "dependency and trust" is disrupted by Padilla having access to counsel. Funny, that didn't seem to be a problem when Lindh, Moussaoui or Reid met with their lawyers.

The balance to be struck here is between the government's legitimate interest in collecting intelligence from terror suspects and the due process granted every citizen accused of wrongdoing. This country was founded on the principle that anyone who is being held by the government may challenge the validity of his or her confinement, no matter how heinous the alleged crime. That principle cannot be shunted aside simply because the government finds it inconvenient now. The military has already held Padilla incommunicado for seven months. Just how long should it be allowed to keep a man before his side is heard?

No American should be a prisoner on the say-so of the executive branch alone. Padilla and Hamdi may or may not have conspired to harm the interests of the United States, but our system asks the courts, not the president, to make that judgment -- and it should be made only after the accused has a chance to put forth a defense assisted by counsel. Lindh, Moussaoui and Reid have been given that chance, and two of those men are not even American citizens. What Padilla and Hamdi are asking for is basic due process. Denying them this measure raises questions about what kind of case the government really has against them.

Contact the Times | Privacy Policy
Standard of Accuracy | Terms, Conditions & Copyright