JB

The New York Times reports that Federal District Judge Michael Mukasey in the Southern District in Manhattan has reaffirmed his earlier ruling in December that Jose Padilla has the right to consult with counsel. Padilla, an American citizen, was accused by the government of conspiring with Al Qaeda operatives to bring a "dirty bomb" (a bomb that explodes radioactive material) into the United States. He was arrested May 8th in Chicago, returning from a trip to Pakistan. At first the Justice Department claimed that he was being held as a material witness, but on June 9th, they stated that he was an enemy combatant and had effectively no Bill of Rights protections, including no right to consult with counsel.

The district court disagreed, ordering that Padilla be permitted to meet with counsel in December. However, instead of complying with the judge's order, the Justice Department asked the judge to reconsider his decision. The judge made clear in today's written order that he would not accept further delay, as the Times reports:

"Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further `dialogue' about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so," the judge said.

The Justice Department was wrong to insist that by simply designating some one an enemy combatant, the Executive can strip away the basic constitutional protections that all citizens enjoy. If the government can strip away Padilla's rights at will, it can strip away yours and mine. When you give government arbitrary power, eventually it will use that power arbitrarily.

I for one fully believe that members of the Justice Department are trying to keep our country safe. But I do not think that good intentions justify a blank check to the Executive. Even the best of intentions must be constrained by basic rights; otherwise, convinced of its own rectitude, the government will overreach.

It is important that courts exercise some check on the Adminstration's zeal. But it is equally important that members of the public make their opposition heard as well. Courts will not keep us safe from government overreaching in times like these. Only we ourselves can do that.