This non-lawyer thinks Lawrence Tribe is spot on with this one:
The debate over the treatment of these suspects has centered on whether they must be tried promptly or can be detained indefinitely on the president's mere say-so. This is a false choice. While the Bush administration certainly has the right to argue that these citizens are enemy combatants and thus may be imprisoned for the duration of the war, it also has the obligation to defend its position in federal court.
The case of Mr. Padilla, who is a suspect in a plan to detonate a radioactive bomb in the United States, rightly concerns many civil libertarians. All citizens have the right to know the reasons they are being held, and if no adequate reasons are forthcoming, to be promptly released. If they are charged with a crime, they have the constitutional right to a speedy trial. But demanding a trial in these circumstances, where someone like Mr. Padilla would almost surely be found guilty, carries a high cost for civil liberties: it would stretch the meaning of already elastic concepts like criminal conspiracy to the point of creating what would amount to thought crimes.
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But the Bush administration is wrong when it claims that anyone, alien or citizen, may be detained indefinitely as an enemy combatant based on the president's unilateral judgment that the detainee was a participant in the enemy force that attacked the country Sept. 11.
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In habeas corpus hearings in these cases, the need for confidentiality may prevent parts of the proceedings from being open to the press and public. And even in closed hearings, judges will sometimes have to make do with imperfect information. Still, the task seems manageable if we remember that the issue is neither the detainee's guilt nor the degree of danger the detainee poses. It is simply whether the detainee's status as an active member of an enemy force is supportable.
