Sure, I buy all that. But then we're left with a guy who the government is absolutely convinced would, if given the chance, Do Some Bad Crimes. We (mostly, but see below) don't have very many good examples of this with Normal Crime, because (for instance) when a mass-murderer like Charles Manson comes up for parole, the parole board says "Yeah, it's a bad idea to let him out" and he stays in there. Now, sure: he got there because he ACTUALLY KILLED PEOPLE and had a trial (or two?), so that's all OKAY. And it's not like OJ said "Cool, I'm outta here, and I'm gonna go kill someone else" ... yes, we have multiple-offenders, but again: usually this is used after the fact to (for instance) strengthen sentences and lower parole possibilities.
I'm uncomfortable with the idea that the core of this issue is that "Bush is a fascist!" and "We're all headed for not having liberties!" ... but, here again: What Is To Be Done? I think the only other "good" example we have is the TRO process: you can pretty much get a TRO on anyone if you can convince a judge that your fear is real: you don't need an actual crime, or even really a valid threat. Mostly this is of little importance to society (though plenty usually to the restrained) (and really, if you want me to stay away from you, I'd be more than happy to!) in terms of abuse (though see the Emerson case in Texas for some lousy side-effects sometimes), so I think mostly people are OKAY with it.
But what do we do about people like Padilla? He's not a "criminal" (per se): he hasn't committed a crime. So he can't be charged and tried. But they are _absolutely convinced_ that he would commit one. A bad one, apparently. Now I don't know anything about the particulars of the cards the feds aren't showing in this case (and probably: neither do you), but I can at least believe that there could be someone who has this trait. So let's go hypothetical to avoid getting bogged down in the details of whether or not Padilla _in particular_ is the issue here. And I don't think he is.
So let's call him Joe Blow (or John Doe #2, if you get my drift). If Mr. Blow were determined to be a Big Threat (though presently not able to be charged), and say Mr. Blow wasn't a citizen of the US, you might find him getting deported and put on a list that would keep him out of the US in the future. But this Mr. Blow is a citizen.
What should be done? The strict pre-9/11 legal analysis would be: charge him, or let him go. Is that still true? Let's just say they let Mr. Blow go and he does one day set off a dirty bomb in Chicago. What would we all say then?
I suspect part of this group is mouthing the words "But it's unlikely he would!" ... so again, I agree: protection against abuse is paramount. But can we at least agree that a) such a person, with such a viewpoint could exist and b) we don't have a good idea of what to do with such a person legally at this point?
I'm pretty convinced that what's NOT needed is some administrative way to have the Executive just declare him to be a "Yellow Rose of Texas" (I hate to actually use the term 'enemy combatant') and that's that. It's got to involve at least a judge or a panel -- or even maybe a Grand Jury? -- so that there's some sort of check-n-balance. If we're going to have it at all, that is.
Barbie says: domestic counter-terrorism is hard!
/jordan