JOSE PADILLA has been confined in a military brig since June. An American citizen arrested in this country by civilian authorities, he is being held incommunicado, unable to speak even to his lawyers. Recently a federal judge ruled that this state of affairs could not persist: An American citizen detained indefinitely -- even during wartime -- must be able to respond to the government's allegations and, therefore, must have some access to counsel. This is hardly a radical suggestion. But even the barest hint of an adversarial proceeding is too much for the military these days. So the government last week informed Chief Judge Michael B. Mukasey of the U.S. District Court in New York that it will appeal his ruling.

Judge Mukasey's opinions have hardly been hostile to the government's concerns. The government contends that Mr. Padilla is an al Qaeda operative who was plotting a "dirty bomb" attack when he was arrested in May at Chicago's O'Hare International Airport. The judge agreed that if this is true, his detention as an "enemy combatant" is lawful -- and he agreed further that the evidence should be assessed with deference to the government's position. The only substantive point on which Judge Mukasey did not side with the military was in his refusal to simply accept the government's say-so as to Mr. Padilla's conduct. He insisted on at least hearing from the accused before consigning him to his fate. We ventured the hope that the military could live with the limited access to counsel Judge Mukasey ordered.

But the government wants an essentially unchecked authority to detain Americans as enemy fighters on nothing more than its own word that they are enemy fighters. Judge Mukasey's opinion has a potential vulnerability, so the government's prospective appeal will not be legally insubstantial. But it is reprehensible. Arguing that Judge Mukasey's deferential standards do not adequately protect the government's needs is really an objection to any procedural fairness to an American citizen the government wishes to detain. Indeed, if Mr. Padilla can be locked away without any sort of meaningful review for as long as the United States remains at war with al Qaeda, the liberty of all Americans effectively becomes the hostage of presidential whim.

Mr. Padilla is, in all likelihood, the very dangerous person the government alleges him to be. Judge Mukasey himself has acknowledged that the likely result of his review would be to "confirm . . . that Padilla's detention is not arbitrary, and that the President is exercising a power vouchsafed to him by the Constitution" in imprisoning him. But the stakes in Mr. Padilla's case should not be obscured by who he is. An unbridled power of military detention will not forever be deployed only against would-be terrorists.

© 2003 The Washington Post Company