Imprisonment without trial.

The three-judge panel making up the Fourth Circuit U.S. Court of Appeals unanimously agreed on September 9 that American citizens no longer have the right to trial by jury.

Led by J. Michael Luttig, the unanimous appellate court ruled that Brooklyn, New York, native Jose Padilla could be incarcerated indefinitely by the Bush administration without being tried for or even being formally charged with a crime. Padilla has already been in federal prison for more than three years. The court concluded that requiring the Bush administration to eventually proceed to "criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee's communication with confederates so as to ensure that the detainee does not pose a continuing threat to the national security even as he is confined--impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security."

Notwithstanding the fact that the Bush administration has already had Padilla in custody for more than three years and that any intelligence he may have would be extremely dated, the appellate court ruled that a circuit court decision granting this American citizen a trial "fails to ac cord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress."

After more than three years, how much discretion does the Bush administration get?

Judge Luttig answered by approving of Padilla's "detention for the duration of the relevant hostilities," despite the fact that the president has publicly stated that the duration of his "war on terror" will be at least "a generation." In other words, the president can imprison any American without trial or charges indefinitely, simply by accusing him of being an "enemy combatant."

So much for the unqualified guarantee in the Sixth Amendment to the U.S. Constitution, which pledges that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury."

One of the most troubling parts of the court's decision is that it is based upon assumptions. For instance, Judge Luttig asserted:

   Jose Padilla, a United States citizen, associated with forces
   hostile to the United States in Afghanistan and took up
   arms against United States forces in that country in our
   war against al Qaeda. Upon his escape to Pakistan
   from the battlefield in Afghanistan, Padilla
   was recruited, trained, funded, and equipped by
   al Qaeda leaders to continue prosecution of the
   war in the United States by blowing up apartment
   buildings in this country. Padilla flew to the United
   States on May 8, 2002, to begin carrying out his
   assignment, but was arrested by civilian law enforcement
   authorities upon his arrival at O'Hare
   International Airport in Chicago.... Under the facts
   as presented here, Padilla unquestionably qualifies
   as an "enemy combatant."

The problem with the above statement of "facts" is that not one of them was ever established as a fact. The defense was never allowed to challenge any of the allegations and wasn't allowed to present exonerating evidence. In short, the court simply acted as stenographer for the Bush administration's unsubstantiated allegations. Luttig accepted as true the very "facts" that his courtroom was created to determine.

Why even bother to have courts at all, if the mere word of the president is good enough to lock up a citizen indefinitely?

The Washington Post noted that the Bush administration's accusations against Padilla are tenuous at best: "The government originally described Padilla as plotting with al Qaeda to detonate a radioactive 'dirty bomb' but has since focused on allegations that he planned to blow up apartment buildings by filling them with natural gas." Even Luttig's decision itself seemed to acknowledge that the evidence against Padilla was extremely weak, incredibly arguing that "criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place--the prevention of return to the field of battle." That is, if given a trial, Padilla may not be found guilty.

I don't know if Jose Padilla is innocent. If he is guilty of any of the allegations leveled by the Bush administration, and if the evidence is available to demonstrate that guilt, a trial won't protect him. Just the opposite, in fact.

My support for the right to trial by jury does not mean I want to coddle terrorists. To the contrary, I want terrorists punished to the fullest extent of the law. But the right to trial by jury protects the innocent. I support the right to trial by jury to protect myself from arbitrary presidential rulings. Even if I trusted the Bush administration completely in not abusing this power, I am obliged to deny the principle because a later president (Hillary Clinton?) could take this principle and run away with it.

This case will go to the Supreme Court. But such basic freedoms shouldn't hang on the word of nine judges. It never should have come this far. If we can be imprisoned indefinitely without trial based only on the word of the executive branch of government, what rights do we really have?