At War: No Ordinary Crime.(civil rights during wartime)(Brief Article)

Free Jose Padilla! That would be the cry of the civil libertarians if they were to follow their opposition to Padilla's military detention to its logical conclusion. The fact is that the Dirty Bomb suspect, a U.S. citizen, has committed no crime (unless it's illegal even to talk to members of al-Qaeda), and evidence about him has probably not been gathered in keeping with all the rules of the U.S. criminal-justice system. If Padilla should be treated by the normal rules, as critics say, he should be held for a time as a material witness and then let go. He would then walk free until he engaged in a criminal conspiracy that could be nailed down with enough specificity to try him in a U.S. court.

Following the normal rules of the criminal-justice system, however, would be an insane way to run a war. The liberal legal scholar Laurence Tribe, writing in the New York Times, was able to grasp the point: "[R]eleasing captured soldiers who belong to an enemy force committed to the murder of American civilians -- whether that force is the army of a nation-state or of a transnational organization like Al Qaeda -- is suicidal."

Critics fret that Padilla's example shows that the federal government can reach down and designate any U.S. citizen an "enemy combatant," denied all legal rights. (Bear in mind that, so far, this has happened to two U.S. citizens.) But habeas corpus has not been repealed. Padilla's representative can and will challenge the constitutionality of his detention in court. Then he will lose, in all likelihood, because case law, and a fair reading of the Constitution, indicate that the president has the power to designate "enemy combatants" and that the courts should conduct their review ...