Still No Lawyers

A YEAR AGO it would have been unthinkable for the American government to hold indefinitely U.S. citizens whom it was unprepared to charge with crimes and not permit those detainees access to lawyers. Today, however, Jose Padilla and Yaser Esam Hamdi are both sitting in military brigs, still unable to communicate with attorneys or defend themselves in court. Neither character, to be sure, evokes much sympathy: Mr. Hamdi was caught fighting for the Taliban in Afghanistan, while Mr. Padilla is suspected of involvement in a nascent plot to set off a dirty bomb. But the government's position that these offenses need not be substantiated, or even alleged, in court before either man can be indefinitely imprisoned is enormously dangerous. That danger exists even if it arises from the cases of men who may need to be locked up.

Messrs Hamdi and Padilla are imprisoned on nothing more than the government's claim that they are enemy combatants. According to the government, the president alone has the power during wartime to designate people, including citizens, as enemy fighters subject to detention until the end of hostilities. Courts, in the government's view, have no power to review these designations; at most they have the power only to rubber-stamp the reasonableness of the president's judgments, using only information that the government itself supplies. Moreover, the determination of when a war begins and ends is the president's to make, too. To make matters more Kafkaesque, those he designates as enemy combatants cannot meet with lawyers, so even if they had a legal forum in which to challenge his judgment they would have no practical ability to tell their side of the story.

The result is that they wait -- and wait -- in prison while those attempting to represent them fight the government in court without their input. Any day now, for example, the 4th Circuit Court of Appeals may rule on whether Mr. Hamdi can meet with a federal public defender. And an attorney for Mr. Padilla is currently fighting with government lawyers over which court should hear his claims and who may assert them on his behalf. If they lose, what will prevent detentions of more Americans without charge, hearing or representation?