The question has long been moot. It has already happened.

Meet Jose Padilla.

Born in Brooklyn, New York, Padilla was apprehended at Chicago’s O’Hare Airport in May 2002 and has been in custody ever since. And he has neither received a trial nor has he even been charged with a crime. That’s more than three years in prison without a trial, or even a criminal charge, for those of you counting.

Not only has he never even been charged with a crime, Bush Administration officials have argued in court he has no right to see an attorney and that the administration can hold him in prison interrogations forever. Forever.

By the way, the U.S. Court of Appeals for the second district ordered that he be given a trial back in December 2003, and the administration has done nothing.

How did this happen in America? The administration has "designated" Padilla as an "enemy combatant" by executive edict, and official administration policy is that the Constitutional right to a trial by jury, not to mention the right to a bail hearing, no longer applies to American citizens. Deputy Solicitor General Paul D. Clement, then the number three official at the Justice Department, even argued in U.S. Court in July 2003 that Padilla had no right to "access to counsel for the purpose of mounting a factual challenge to the President’s determination that he is an enemy combatant." In other words: if the President and his minions says an American is guilty, American citizens not only are not entitled to a presumption of innocence, they aren’t even allowed to declare their innocence. The Clement went on: "The laws and customs of war recognize no right of enemy combatants to have access to counsel to challenge their wartime detention. In addition, because Padilla is being detained under the laws of war rather than under domestic criminal laws, the Constitution affords him no right to counsel."

By the way, the Bush Administration promoted Clement to Solicitor General after making this argument.

I do wonder, though. If the laws and customs of war make no guarantee of a right to a trial, how is it that George Washington granted a trial to British spymaster Major John Andre – Benedict Arnold’s intelligence handler –after Andre was caught out of uniform behind enemy lines? Apparently, General Washington was one of those rogue civil libertarians of the kind no longer tolerated in the Bush White House.

While there is no way of knowing whether Padilla was tortured, the Bush Administration is on record as advocating the torture of anyone it designates as an "enemy combatant."

The Attorney General’s office produced a memorandum on torture in August 2002 that stated any kind of infliction of pain on prisoners is acceptable, as long as it is not at "the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions – in order to constitute torture." Gonzales’ office stressed, as Clement did with the right to trial by jury, the President’s supposed Commander-in-Chief powers mean that laws against torture no longer apply: "[W]e will not read a criminal statute as infringing on the President’s ultimate authority in these areas…. Section 2340A [which prohibits torture] must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority."

The position quickly spread throughout the executive branch as official policy. The Department of Defense adopted the DOJ position in a March 2003 memorandum, and even strengthened the language. "In light of the President’s complete authority over the conduct of war without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas." The memorandum goes on to make a stronger conclusion that "In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief…. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements in the battlefield."

The argument that Congress can not regulate the army over the will of the President is constitutionally specious. Congress not only has the sole power to "declare war," but is also the only body authorized by the U.S. Constitution to "make Rules for the Government and Regulation of the land and naval Forces." The President as Commander-in-Chief is merely the chief magistrate of Congress, charged under the Constitution with carrying out the dictates of Congress with respect to the armed forces.

Even Alexander Hamilton, that great proponent of executive power, would admit no such power claimed by the Bush Administration. Hamilton wrote in Federalist #69 that the "President is to be the commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

It’s worth noting under all this "war on terror" rhetoric that the United States is not at war. Under our system of government, the question of whether or not we are at war is a constitutional question. We are only at war when the Congress declares war. Congress has not done so since the Second World War, despite actively considering a resolution on Iraq by Congressman Ron Paul (R-Tex.) in 2003.

Because the Attorney General’s office continues to see the Constitution’s "Commander-in-Chief" clause as an Enabling Act for the abolition of individual rights, whenever I think of Attorney General Alberto Gonzales I think of the Mexican bandits posing as federales in the movie Treasure of the Sierra Madre who reply to Humphrey Bogart: "Badges? We ain’t got no badges! We don’t need no badges! I don’t have to show you any stinkin’ badges!" Let’s face it, the official Bush/Gonzales position is you don’t need no stinkin’ trial.

Perhaps there are a few of you reading these words who trust the Bush Administration in its decision-making completely. I would ask you to consider that the fortunes of elections mean that Democrats also occasionally win the White House and that Hillary Clinton or some other – perhaps worse – leader will be inheriting the precedents set by the current administration. James Madison wrote in 1785: "it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it."

The precedent for abolition of the right to trial by jury has already been set. The only question is: Will Americans allow this precedent to be strengthened by its exercise?

Some would persist in the argument that we should trust our government when it makes a determination that a person is a danger to the public. But our Constitution was written under the historical understanding that government officials are not to be trusted. The right to a trial by jury is not for the guilty; we give a right to a trial by jury in order to protect the innocent.

The guilty are in no way protected by a trial; they still face punishment – usually going to prison or perhaps even facing execution – when they are convicted. Timothy McVeigh was not protected by having a trial after conducting the Oklahoma City bombing in 1994. He was apprehended, tried and executed by the Clinton Administration. Neither was his co-conspirator Terry Nichols protected.

By way of contrast, the Bush Administration avoids trials and can’t apprehend Osama bin Laden. Moreover, Bush and his officials appear disinterested in even apprehending the 9/11 mastermind. Bush has said "I just don't spend that much time on him" and his CIA Director Porter Goss has claimed he has "an excellent idea of where he is" but "we're probably not going to be able to bring Mr. bin Laden to justice."

Goss suggested that he knows generally where Osama bin Ladin was and that he wouldn’t apprehend him because of "the very difficult question of dealing with sanctuaries in sovereign states, you're dealing with a problem of our sense of international obligation, fair play." While the notion of respecting another nation’s sovereignty is a rather novel concept in the post-Iraq War Bush White House, I wonder: How serious can our undeclared "war" be if we won’t even apprehend the top bad guy against whom we are supposedly fighting?

Osama is more and more resembling Snowball to the Bush Administration’s Napoleon in George Orwell’s Animal Farm every day.

Isn’t it ironic that the lawless Clinton administration was able to follow constitutional restraints and apprehend the nation’s most dangerous terrorists, while the Bush Administration is using more "efficient" extra-constitutional police state tactics and can’t get the job done? The McVeigh/Osama examples are perhaps a perfect metaphor for the attitude of the Attorney Generals’ office under the two administrations.

I wrote a column for LewRockwell.com in February that compared fiscal spending under George W. Bush with that of the Clinton Administration, and found that federal spending rose much faster under Bush than under Clinton, concluding that "I Miss Bill Clinton." A netizen wrote back to me and said:

"You think that's bad? I miss Janet Reno as Attorney General!"

Back then I thought it was a flippant remark. But upon further reflection, as American Idol’s Randy Jackson would say, "I’m feeling ya, dog."