War's no excuse to deprive U.S. citizens of legal rights

For more than two years, two American citizens have been held in aNavy brig in Charleston, S.C., without being charged with any crimesand with limited and belated access to attorneys. One was seized inAfghanistan, where he is said to have fought as a Taliban. The otherwas a former Chicago gang member arrested at O'Hare for plottingwith terrorists to detonate a radioactive device in the UnitedStates.

This week, in two separate cases, the U.S. Supreme Court beganconsidering whether the constitutional rights of Yaser Esam Hamdi andJose Padilla have been violated during their incarceration -- whetherthey can be held indefinitely, without the right to challenge the"enemy combatant" status conferred upon them by the military. Inlower courts, it was ruled that the government was justified inholding Hamdi in this manner, but not Padilla. We are in no rush tomake life easier for either of these men, who might have killed anynumber of American soldiers and civilians had they not been captured.But whatever danger they do or do not pose, their status as Americancitizens merits them, at the very least, the right to a judicialhearing.

We hope the court will be careful not to intrude upon theconstitutional powers and duties of the president to conduct war --powers that enhance the abilities of the country to root out itsenemies and protect Americans from them. But it is crucial that theopenness and fairness of the American rule of law be demonstrated --that the world sees that we pay more than lip service to the rightsof individual citizens before the law. Among those rights is to betold what one is charged with and to get a chance to respond to thosecharges, with legal counsel.

During these times of war, when the enemy is hidden and spreadacross a multitude of national borders, the most optimisticforecasters are saying the fighting could go on indefinitely --there's that tell-tale word. It's possible that an innocent man heldas a combatant could spend the rest of his life in confinement. Asthe American Bar Association's brief on behalf of Hamdi said, "wherethe deprivation of liberty is complete, ongoing, potentially withoutend, and based entirely upon a secret record, the need for counselcould not be more compelling."

If the government's case against these two enemy combatants is asstrong as it says it is, there will be an opportunity to prove that -- not behind closed doors, but out in the open. Or, if a hearingwould truly pose a threat to national security by revealing more thanit is prudent to reveal, a detention hearing could be held in camera.What's important is that American citizens are not unduly deniedtheir rights under the Constitution. There are standards to upholdhere, however uncomfortable we may be in upholding them.