Jose Padilla

A Question of Rights

But the questions that surround Jose Padilla's detention, obscured to some degree by the stilted language of the court, continue to spark debate.

For some, like Bamford, the prosecutor turned social critic, the circumstances surrounding Padilla's detention are chilling, a sign of the slow erosion of civil rights in the wake of 9-11. He likens Padilla's situation to the one faced by K, the faceless character in "The Trial," charged with some unexplained crime in Franz Kafka's cautionary novel of creeping totalitarianism.

But, he argues, in Padilla's case, the government has even gone further than Kafka's prosecutors by denying him access to an attorney. "I think it's a dangerous precedent to set," Bamfordsaid. "Even in Kafka's book, in that horrible dilemma, even he gave the guy a lawyer. In the opening pages of the book when they come in to arrest him they say, you can call your lawyer."

Others, like Thornburg — who as attorney general under President Bush's father led the investigation that resulted in the prosecution of the Libyan terrorists who masterminded the bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1989 — contend that the current administration is feeling its way through a difficult situation. It is trying to defend American citizens against a new threat to what he sees as their most fundamental right — the right to be free from fear.

"This is a different kind of conflict, one in which American lives and interests are threatened every bit as much as they would be in a war with a clear terminus. It's pretty hard to go to the law books for precedent," Thornburg said. Little by little, in cases like Padilla's, the courts will begin to set the parameters for government action. "Those legal principles are going to have to evolve," he added.

And in the meantime, Jose Padilla, aka Abdul al Muhajir, remains behind bars.