WILL PADILLA GO FREE?

I hope not. Jose Padilla was caught in Chicago in June 2002, on a tip from al Qaeda prisoners held in Gitmo. He has been in a brig ever since, and the Bush administration reports that he has been mostly cooperative with interrogators.

While he hasn't been tried, Padilla has numerous links with various Islamicist fronts and organizations, most notably al Qaeda and Benevolence International Foundation, a known "charity" that funds terrorists around the world. For more on Padilla's history, go here.

Now, the 2nd US Circuit Court of Appeals has ruled 2-1 that the Bush administration lacks the authority to hold Padilla as an enemy combatant, since he is a US citizen and was arrested on US soil. I've written here and there that Padilla's incarceration disturbs me, but on the other hand releasing him or even giving him access to a lawyer disturbs me as well, given the long track record of terrorists using their lawyers as conduits of information to other terrorists. Further, the ruling seems to indicate that any future US citizens arrested on US soil fighting for al Qaeda or similar terror groups will face ordinary criminal procedure, instead of treating them for what they are, foot soldiers fighting a war against us on our own soil.

Look at it this way: Suppose al Qaeda was a state. Suppose it invaded us, in whatever strength it could muster. Suppose it drafted some number of US citizens to join its ranks, who trained with its other recruits and performed missions for it--scouting targets, making bombs, whatever. How should we treat any of those US citizen-terrorists we happen to capture in the normal course of the war?

The only difference between my scenario and the current war is al Qaeda's status. It is not a state, rather a privately run and publicly-privately funded army arrayed against us. It has invaded us, with operatives in a number of cities and with operations in most states. It has recruited US citizens to fight on its side, and those Americans have in fact trained in al Qaeda camps and attempted to perform missions against us on our soil.

Padilla, based on the available evidence, is such a recruit. When he was arrested, he was allegedly scouting a radiological bomb attack against us. To argue that he deserves normal criminal proceedings is somewhat laughable, given that we're at war and he has chosen to side with our enemy. How should we treat him, then? Beats me.

Perhaps the silver lining in the 2nd District Court of Appeals' ruling is that it will force us to clarify and codify how we deal with the next Jose Padilla. Because there will probably be another one at some point.