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"First, if you are saying that by petitioning the courts on a writ of habeas corpus Padilla is getting his Constitutional Rights that is a stretch"
You don't think an American has a Constitutionally guaranteed right to petition for a writ of habeas corpus?
Oh my! Read my posts to that ACLU troll, or check a copy of the Constitution.
Here are some precedents why he won't be released:
See, e.g., Quirin, 317 U.S. at 31, 37 (holding that both lawful and unlawful combatants, regardless of citizenship, "are subject to capture and detention as prisoners of war by opposing military forces"); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (same); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (same).

Are you one of those that claim that congress's authorization to use military force means that the president can only kill those people- not take any of them prisoner?
That's not a civilized way of running a war. I hope we are better than that!

Thanks for the links, I think the 'unlawful combatant factor' will be rearing it's head soon.

First let me clear the air on my position. I support military tribunals for all suspects charged as enemies of the United States, equally. What I do not support is a disproportionate use of either the military or civilian justice systems. I do not support holding or changing the status without due process and without charge or without trial of any US Citizen. I also highly object to the Government allowing a foreign national such as in the Zacarias Moussaoui full US Constitutional Rights over that of a US Citizen. Zacarias Moussaoui has been arrested, charged and in the process of trial lawfully. Simply put, the government has seized an American citizen and stuffed him in a hole. We call that kidnapping. President Bush and his lawyers should know that our Constitution provides no such "authority for such a detention."

The government has reportedly stated that it has no plans whatsoever to bring Padilla before any tribunal. And, unless Bush changes last year's executive order, military tribunal cannot try Padilla as an American citizen. Without one, there is no truth to what White House spokesman Ari Fleischer stated on June 12 -- that Quirin gives the government authority such that Padilla's incarceration "can last for the duration of the war." So much for Quirin.

In Quinn and in many cites the Supreme Court maintained:

The Court holds:
(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.

Again the tribunal as directed by the President does not maintain a status for trying Americans formally. Congress has not specifically authorized such tribunals as it did in WWII. Furthermore the President's order also purports to eliminate judicial review even for aliens “within” the United States, a position clearly at odds with statutory and constitutional law. The Congress's joint resolution authorizing the use of force is not a declaration of war. The Presidents directive does not allow for the military to try Americans. A position I am CLEARLY at odds with. I believe a change in this Executive Order allowing Americans to be tried by the Military will meet Constitutional muster. Otherwise we open Pandora’s box and establish very dangerous presidencies.

Furthermore AQ and Taliban personnel have NOT been given POW status so the citations you cited are moot. In a POW status there is no military tribunal. War Crimes are different subjects. POW status could complicate and compound the problem. Though it would be somewhat easier as far as US and International Law is concerned. This is a point of contention even now.

The reason for Gitmo? Is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts. However even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988. Which we are signatory too.

As far as the right to petition the courts for a writ of Habeas Corpus even an illegal ham and cheese sandwich has this right. It the realm of things as present to allow this to transpire in which the Government knows it will not win is going to set a legal precedence for a person “Jose Padella” that could become a determent in bringing others to trial.

Simply put, CHANGE THE EXECUTIVE ORDER!