This Newsweek article lays it on the line: it looks like Bush and the DOJ are about to get bitch-slapped by the U.S. Supreme Court, and they know it.
The overall administration argument of the Padilla case, as well as the GITMO cases, is that "we are in a time of war, and because of that, we — as a matter of law — can suspend (or outright ignore) the law". This theme has been fortified by the "torture memo" of much recent discussion.
The problem with ignoring the constitutional protections of the accused (whether they be foreign or domestic) is rather obvious — they simply have no means to show their innocence, a cornerstone (I submit) of our country. Interestingly, the Newsweek article suggests that, at least in Padilla’s case, this danger has come to pass. Put simply, it’s not clear that Padilla actually committed a crime or, at the very least, not the crimes for which he was originally imprisoned.
The Padilla and GITMO controversy reminds me of a scene from "The West Wing". The cast members — White House Press Secretary C.J. Craig, Communications Director Toby Ziegler, Deputy Communications Director Sam Seaborne, and Deputy Chief of Staff Josh Lyman — were having a midnight beer on the stoop of Josh’s Georgetown apartment. The subplot of the episode dealt with radical extremist groups here in the United States (a few members of the hate groups had fired shots at the fictional President several episodes earlier, and wounded Josh). These White House staffers were discussing the inability of the Justice Department (among others) to simply eradicate these hate groups from the face of the planet.
Josh sipped from his beer and mused. "Here we are, sitting outside with open beers in violation of like a hundred city ordinances. And those hate groups get to go around free. What can you say about a country that protects the rights of those who want to overthrow it?"
Toby thought for a moment and answered: "God bless America". And everyone took a sip in agreement.
In that moment, Aaron Sorkin (the show’s writer and creator) captured the essence of what makes our country unique and special. It’s not our flag, or our military, or the fact that we have the largest GNP. It’s the principles we embody — a country so morally correct (in theory, anyway) that it goes to great lengths to afford rights to everybody — including those people who want to destroy it. Isn’t that cool?!?