An article in the Sunday New York Times notes that two American citizens, Yasser Esam Hamdi and Jose Padilla, are being held in military prisons without having been charged with any crime and are being denied access to a lawyer. Call me a shameless liberal if you must, but it seems to me that if American citizens can be imprisoned indefinitely and without charges or due process in the name of a protecting the "American way of life" against terrorism, we risk killing the system that we claim we are working so hard to save.

Let me start with some full disclosure and a disclaimer. First the disclosure: my next-door neighbor, Nina, worked in Tower 1 of the World Trade Center, and never came home on September 11. My own office was in Tower 2. I was late to work (and so, never made it into the building) but had to run for my life when the first tower collapsed. I hid out in a convenience store until the dust settled, then walked six miles home. And now the disclaimer: I am not against the imprisonment and eventual prosecution of suspected terrorists, and frankly think that if we can find the true perpetrators, we should exact slow and excrutiating revenge. If Hamdi or Padilla are believed to have participated in terrorist activities in any form, they deserve to be locked away forever by the government. But I refuse to compromise my ideals, and therefore, I hold as a fundamental assumption that they should be held and treated in a manner consistent with the due process rights guaranteed to all American citizens, because they are American citizens.

Bear with me as we take a brief trip through the history of the sovereign's power to act against its citizens. Due process, as a check on that right, is one the most fundamental elements of American democracy, and a concept that dates back at least as far as England in 1354. In American history, the first recorded guarantee of the right to due process is found in the Charter of Liberties and Privileges, adopted by the first colonial assembly in New York in 1683. This rule of law was later enshrined in the Bill of Rights' Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty, or property, without due process of law. . . ."

The upshot of all of this history is that in matters of personal liberty, we hold the government to a higher standard than simply the whim of the executive, no matter how compelling that whim might seem in the moment. As Article 39 of the Magna Carta recognized in 1215, “Noe freeman shall be taken and imprisoned or be disseized of his ffreehold or Libertye . . . But by the Law-full judgment of his peers and by the Law of this province.”

This brings us back to the continued incarceration of Mr. Hamdi and Mr. Padillo without charges and without access to their attorneys. According to the New York Times, "[g]overnment officials said Mr. Hamdi has not been charged because he is being held for the protection of the country, not for prosecution." An unnamed "senior administation official" quoted in the Times article put it this way: "This is not a punitive action, it's self-protection."

But this begs the question: self-protection toward what end? Whatever we may think of these men, they are American citizens, and are entitled to all of the "privileges and immunities" that such citizenship confers, to quote the 14th Amendment. Last time I checked, these protections included, first and foremost, due process under the law.

Don’t we, by denying them rights accorded to all Americans, destroy the ideal of America as surely as they would through terrorism if they could? Even as a victim of terrorism, I ask, where is the due process for these men? Where are the indictments by a grand jury? What about the right of each man to have an attorney present during questioning (as explained by the Supreme Court in Miranda v. Arizona, “we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today . . . . [T]his warning is an absolute prerequisite to interrogation”)? How is this due process? What happened to their Sixth Amendment rights first, to be informed of the nature and cause of the accusations against them, and second to have the Assistance of Counsel for [their] defence?

As a country, we don't believe in putting people in jail for “protection, not prosecution” and leaving them there on the whim of an unnamed "senior administration official." It smacks of totalitarianism. Worse, it establishes the precedent for further abuse: by preventing Hamdi or Padillo from knowing the charges against them or even giving them an opportunity to talk to a lawyer, the administration has decoupled the exercise of ultimate power by the sovereign from any meaningful check or balance.

In the end, I am not suggesting that Mr. Hamdi or Mr. Padillo are innocent or that they deserve to be freed -- they probably aren't and probably don't. But note the use of the word "probably" -- without due process of law, how can I know? How can they know? For their sakes, and ours, they should be charged and given the right to talk to their lawyers. Anything less betrays the very American ideals that our government has pledged to protect.