Jose Padilla, the alleged “dirty bomber,” would be better off if the U.S. government would charge him with a crime. In that case, he would be entitled to all of the due-process protections of the Constitution, including a speedy public trial by jury, the privilege against self incrimination and the right to cross-examine witnesses. But instead, Atty. Gen. John Ashcroft has decided to treat him as an “enemy combatant.” Padilla, also known as Abdullah al Muhajir, has been transferred to a military brig where, according to the Justice Department, he can be confined indefinitely without trial.
Is it really possible that an American citizen can be stripped of his constitutional rights, and incarcerated without trial, simply because the government believes that he is working for the enemy? Perhaps surprisingly, the government does indeed have that legal power, and for very good reasons. But that should lead us to worry more, not less, about whether the Bush administration will always choose to use it wisely.
As to legality, it is obvious that unlawful combatants represent a category apart from even the most dangerous ordinary criminals, and that national security demands they be treated differently.
Consider, for example, the crucial matter of interrogation. In the criminal justice system we provide numerous safeguards–including Miranda warnings and appointed counsel–to ensure that only voluntary confessions are used in court. But it would be absurd to appoint a lawyer before interrogating a captured spy or saboteur, and even more absurd to discontinue questioning if the suspect attempts to invoke the “right to remain silent.” As important as the 5th Amendment is in criminal prosecutions, it has no place in wartime efforts to thwart continuing terrorist operations.
There is a critical distinction between gathering evidence and collecting intelligence. In individual prosecutions, we are willing to forego some evidence for the sake of a fair trial. But there is much less latitude when terrorists are on the loose, since the potential consequences can be far more devastating than the occasional acquittal of a guilty defendant.
We can see this clearly in the treatment of Zacarias Moussaoui, now alleged to be the 20th hijacker, following his arrest on immigration charges in August 2001. Believing they had insufficient evidence for a warrant, the FBI did not even attempt to search his computer until after he was implicated in the Sept. 11 attack. If he had been identified as an enemy combatant, rather than a criminal defendant, the FBI could have acted far more quickly and perhaps more effectively. Before Sept. 11, there was little way to know the full extent of Al Qaeda operations within the United States, but today there is no excuse. The “enemy combatant” classification is therefore an essential tool for safeguarding homeland security. As Secretary of Defense Donald Rumsfeld said of Jose Padilla, “We are not interested in trying him at the moment,” but rather in “finding out what he knows.”
But that does not end the discussion. Even essential tools can be misused. The pressing civil liberties question is not whether enemy combatants may be detained indefinitely, but rather how to make the decision about an individual suspect.
The Bush administration insists that the executive branch alone will make the determination, without review by the courts. This is a dangerous doctrine, coming perilously close to suspending the law by presidential fiat. And President Bush’s own pronouncement is hardly reassuring, informing us only of his personal opinion that Padilla is “a bad guy” who is “where he needs to be, detained.”
Thanks to a lucky procedural break, Padilla himself may get a day in court. He was originally arrested on a “material witness” warrant, which required the appointment of counsel. His lawyer admirably stuck with the case, even after Padilla was transferred to military custody, and she has presented a writ of habeas corpus to a federal district judge in New York. But the next enemy combatant may not have that advantage, and we will not necessarily even know how many American citizens are being held for investigation without formal charges.
This is the paradox of a free society. We pride ourselves in open, transparent government, yet we occasionally require extraordinary security measures to defend ourselves against very real threats. The Bush administration can resolve this dilemma expediently, and without damage to legitimate security interests. Now that the “enemy combatant” designation is in use, the administration should establish meaningful standards for its application, explaining why and when an individual will be held rather than tried. Most important, each case ought to be subject to regular periodic review, preferably by a specially designated panel within the Justice Department, so that ad hoc decisions can be re-examined and possible errors corrected.
Perhaps such a process is not legally required, but it is certainly necessary.
