Every American has the fundamental right to be brought before a federal judge, and that judge has the power to order the U.S. government to charge and try this person or let that person go.

In the case of Jose Padilla, the Bush administration doesn't want to charge him and doesn't want to let him go either. Since June 2002, Padilla has been held in solitary confinement and the administration insists it can hold him for life, if need be, without charge or trial.

The administration says it can do this solely on President Bush's say-so that Padilla is an enemy combatant. It is a chilling assertion of executive power and thankfully the administration has been on the losing side of a series of court challenges.

Padilla, it is alleged, so far without evidence, plotted with al Qaeda to set off a "dirty" bomb and blow up apartment buildings here.

There has been one other "enemy combatant" subject to this treatment, a young American-born Saudi captured in Afghanistan. Yaser Esam Hamdi, too, was kept in solitary and the administration fought to keep him there but after losing in the courts the administration rather tamely shipped him back to his family in Saudi Arabia.

In 2003, the 2nd U.S. Circuit Court of Appeals in New York told the administration to either charge Padilla with a crime or let him go. The administration appealed to the Supreme Court, which ducked the larger issue and found that the case had been filed before the wrong circuit.

The case was refiled in South Carolina and this week Padilla's attorneys petitioned U.S. District Judge Henry Floyd to hear their plea for a writ of habeas corpus. ACLU attorney Denyse Williams challenged government lawyers, "If everything you say about Jose Padilla is true, prove it."

That's what the U.S. Constitution says.

(Contact Dale McFeatters at McFeattersD(at)SHNS.com)