DAN K. THOMASSON Guarantee of due process challenged

WASHINGTON -- A federal judge in South Carolina has stated as succinctly as possible that neither President Bush nor his agents can suspend the Constitution and its guarantee of due process for U.S. citizens arrested here under any circumstance, including a national emergency.
Judge Henry Floyd has given the Justice Department 45 days to charge Jose Padilla with a crime or free the alleged terrorist plotter who has been held in a military brig for nearly three years without his day in court despite the fact he is an American citizen arrested on U.S. soil. If this opinion is not upheld throughout the appeal process all the way to the Supreme Court, the Constitution that has protected our rights so diligently finally will be just another piece of paper and the judicial branch of government will have abrogated its place to the executive branch.
This is no defense of Padilla, who has been a bad actor much of his life and now is alleged by the government to be a tool of Al-Qaida sent to scout possible locations for planting a so-called "dirty" bomb, one laced with radioactive material. He may be the threat the government says he is. But if that is the case, he should have been charged long before now and put through the constitutionally guaranteed process. Even those of us not schooled in the finer points of the Constitution realize that faith in our system depends on a relatively swift resolution of allegations against us and the certification that we are not guilty until proven so through trial. One suspects the government does not have the evidence to convict him, which then makes his incarceration even more troubling.
Active combatant
The Justice Department likes to compare Padilla's situation with that of another U.S. citizen, Yaser Esam Hamdi, whose detention by the military was upheld by the Supreme Court. Floyd, however, properly saw the two cases as dissimilar because, unlike Padilla, Hamdi was arrested in Afghanistan and was carrying a weapon as an active combatant against the forces of his country. It is one thing to be on the enemy's side in an overseas war zone and quite another to be arrested as a civilian in one's own country and denied the opportunity to prove one's innocence.
Should this case reach the Supreme Court, as is likely, the decision could easily be based on whether Padilla is tried before a civilian or military court. It never should be about whether he should be afforded a trial. That is an absolute. Even in the most repressive systems, there is at least recognition that a semblance of due process is necessary. Otherwise, there is no pretense of a rule of law. If we hold American civilians incognito for months on end merely on the word of government authorities that they are a danger and guilty of plotting against the nation, how are we any different from the dictatorships of South America or the gulag mentality of the old Soviet Union?
In his decision, Floyd accused Bush of engaging in judicial activism by asserting that he has blanket authority under the Constitution to detain Americans on their own soil. The judge rightly challenged this concept in the harshest terms, contending that if such presidential powers were upheld, even in wartime, they would "eviscerate the limits placed on presidential authority to protect the citizenry's individual liberties."
It is disgusting for this president, whose second inaugural address was based on the concepts of democracy and freedom and larded with pledges to promote liberty throughout the world, to allow those in his administration to make claims in his behalf that clearly undercut that message. What can he be thinking?
At a time when the administration is calling for renewal of the Patriot Act, which has given the FBI and the Justice Department sweeping emergency powers in the war on terrorism, it is particularly unnerving to realize what can happen when there are abuses of authority, which there always are. If the Justice Department and the White House persist in efforts to keep Padilla on ice without a charge, Congress should be asking itself whether renewal of the act isn't dangerous.
Japanese-American internment
Even the late J. Edgar Hoover, whom liberals love to excoriate as the prototypical nemesis of civil rights in America, opposed the internment of innocent Japanese-Americans during World War II, arguing that it was in direct contravention of the Constitution. He was correct, of course. So is Floyd in this case.
X Dan K. Thomasson is former editor of the Scripps Howard News Service.