"I think it's egregious when Attorney General Gonzales says that Padilla's being held for three and a half years in solitary confinement is irrelevant," [Donna] Newman said. "I think it's very relevant to how we are viewed around the world, and to what authority the president has to detain any citizen, almost on a whim, without charging him."

Perhaps Gonzalez intended the modifier “legally” to distinguish between facts that are relevant to the administration’s outrageous handling of Padilla’s case and facts that are relevant to the legal merit of the charges the Justice Department finally decided to bring. But keeping Padilla from having meaningful representation during the three-and-a-half years it took the government to build its case -- effectively preventing Padilla from preparing a defense -- seems highly relevant to whether Padilla can now have a fair trial. Courts rarely give defendants relief when the government delays in bringing an indictment, but defendants are rarely detained for years, with no meaningful access to counsel or the courts, while the government decides whether to indict. The government’s prior conduct may be highly relevant to this prosecution, as much as Gonzalez would like to pretend otherwise.

Adam Liptak observes today that the Bush administration “has yet to settle on a consistent strategy for holding and punishing people it says are terrorists.” He also suggests the obvious: that the administration is reluctant “to have the executive branch’s broadest claims tested in the courts.” The administration might be less reluctant if it succeeds in installing Judge Alito -- a friend to executive power, as is Chief Justice Roberts -- on the Supreme Court, but it seems plain that the administration charged Padilla to avoid a Supreme Court showdown on its claim that a president can order the indefinite detention of American citizens who are seized within the country’s boundaries.

The Times notes that “even some conservatives [have been] questioning the rationale for detaining an American citizen captured on American soil without charging him.” It’s shocking that any American, no matter how conservative, would think the Constitution doesn’t apply, at a minimum, to American citizens seized in the United States.