The War Comes Back Home

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A trial is expected next month. It might help answer the question of whether the government can use secret testimony in cases of national security or whether such a tactic is too great a danger to constitutional protections.

--WHEN CITIZENS ARE BRANDED THE ENEMY The post-9/11 episode that worries civil libertarians the most involves dirty-bomb suspect Jose Padilla, an American citizen who allegedly met with senior al-Qaeda operatives in a plot to detonate a radiological device somewhere in the U.S. Arrested last year at Chicago's O'Hare International Airport, Padilla was classified as an enemy combatant and sent to a naval prison in South Carolina, where he has been denied access to a lawyer. According to government filings, Padilla has been undergoing months of interrogation that could be compromised if lawyers were allowed into the process.

A federal judge in Manhattan has ruled that Padilla must be allowed to meet with his lawyers in order to challenge his enemy-combatant status. But the government maintains that no court has the authority to review that classification. Federal prosecutors have taken a similar position in the case of Yaser Esam Hamdi, a Louisiana-born man who came into U.S. custody after he was captured in Afghanistan, allegedly fighting for the Taliban. He has been declared an enemy combatant as well, held in a Navy prison in Virginia and prevented from seeing attorneys.

Either of those cases could wind up in the Supreme Court. "To say that the Executive Branch on its own determination can pick somebody up and hold them indefinitely without any procedure or access to a court or to counsel or the press is an absolutely staggering thought," says Stephen Schulhofer, a law professor at New York University and the author of The Enemy Within, a book produced for the Century Foundation, that examines post-9/11 questions of civil liberty. The Attorney General insists that misses the larger point. "There are no civil liberties that are more important than the right to be uninjured and to be able to live in freedom," Ashcroft recently told TIME.

The dilemma is that reasonable people can agree with both arguments. But no one knows whether such changes will make us safer or undermine constitutional protections — or both. On the deck of the U.S.S. Abraham Lincoln last week, when the President said the war on terrorism would be a fight that lasts years, he should have added that some of its most pitched battles will be fought in our courts. And in our own divided hearts and minds.