December 29, 2005 - Jose Padilla, remember that name. It is about to be enshrined as the lawyer’s reference to a watershed in the development of American - Constitutional law. For generations to come law professors will be citing the Padilla case. Students will cite it in papers and examination essays. It will be pivotal as it decides the nature of the Presidency in the Twenty-First Century.

It was quite a trip that elevated a Chicago street punk into landmark case. After a move to Miami he converted to Islam and adopted a radical sect as his own. He allegedly became active with a group of young men raising money and recruits in support of terrorists abroad. He went to Afghanistan and when he returned he was arrested without a warrant by FBI agents in the arrival area of O’Hare Airport. Taken to New York he was held in the Metropolitan Detention Center there awaiting the filing of charges. An Attorney was appointed to represent him. Before any charges were filed and without securing any warrant from a court the President ordered that he be turned over to the Department of Defense declaring that Padilla was an enemy combatant.

On the President’s order Padilla has been imprisoned for the last 3 ½ years while his lawyers tried to get a ruling on the President’s power to detain a citizen without any charges by simply labeling him as an enemy combatant. The Administration has fought hard to avoid an up or down ruling. When Padilla’s lawyers brought the suit in the Federal District Court from whose jurisdiction Padilla was taken the Administration successfully argued that the Habeas Corpus action had to be brought in the district in which the prisoner was held. When that suit worked its way up to the Supreme Court and was ripe for a ruling the Administration shifted ground and sought to transfer Padilla from military custody to the civilian criminal court by indicting him in Miami. When that did not play well in the 4 th Circuit Court of Appeals the case to decide the extent of the President’s power will be squarely in the lap of the Supreme Court.

No matter what the outcome Jose Padilla will join in the pantheon of disreputable people who have lent their names to the landmarks by which American Constitutional Law is written. Whether the Supreme Court decides that the Presidents authority is as unlimited as Vice President Cheney desires or it declares that the Constitution limits his exercise of arbitrary power to the extent demanded by American liberty the case will be referred to as the Padilla Case for generations to come. The Supreme Court is not deciding this case in a vacuum. Even as it comes to the Court the extent of the President’s bypassing the minimal protections afforded by a Star Chamber Court becomes more and more public. While that exercise of power is not yet before the Court the Justices are not blind and deaf. It will have an effect on the outcome. To a very great extent this case will determine whether the Constitution has become that which the President says that it is – just a goddamned scrap of paper.