Jacob Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, write or call the editorial page editor.
Posted on 06/16/2002 2:11:43 AM PDT by billybudd
In the new movie Minority Report, the police arrest people for crimes they are expected to commit in the future. Our own government seems to be laying the groundwork for a similar policy.
Deputy Defense Secretary Paul Wolfowitz calls Jose Padilla, a.k.a. Abdullah al Muhajir, "a very dangerous man," and perhaps he is. But by locking him up indefinitely without bringing charges, the government is setting a precedent for preventive detention of any U.S. citizen whom the president decides to put on the country's enemy list.
This maneuver makes due process disappear through misdirection and circular reasoning: If you're a terrorist, you're an "enemy combatant." Therefore, the government does not have to prove you're a terrorist.
Attorney General John Ashcroft says Padilla, a former Chicago gang member who converted to Islam, has met repeatedly with leaders of Al Qaeda, undergone training in the use of explosives, and studied the mechanics of "dirty bombs." The FBI arrested him on May 8 after he flew from Pakistan to Chicago, allegedly to research possible targets.
Yet the Justice Department never charged Padilla with a crime. After detaining him for a month as a "material witness," the government decided he was actually an "enemy combatant," so he was turned over to the Defense Department, which is now holding him at the Naval Consolidated Brig in Charleston, S.C.
According to The Washington Post, the transfer was necessary because prosecutors did not have enough evidence to indict Padilla. Now "investigators can continue seeking information from him with relatively little interference from a defense attorney."
Ah, those pesky defense attorneys. Padilla's lawyer has filed a petition for a writ of habeas corpus in federal court, asking the government to justify his detention.
Wolfowitz says the justification is simple. "Enemy combatants, whether they are American citizens or not American citizens, are subject to the same provisions of the laws of war," he told CBS. "You can hold an enemy combatant until the end of the conflict."
In support of that argument, Wolfowitz cites a 1942 case in which the U.S. Supreme Court approved the military prosecution of German saboteurs, including one U.S. citizen. In that case, however, there was an official declaration of war and an identifiable enemy that could be decisively defeated.
The "war on terrorism," by contrast, is a war without end. By Wolfowitz's reasoning, Americans identified as "enemy combatants" because of alleged links to terrorist groups can be given what amounts to a life sentence without being charged, let alone tried.
Unlike the Roosevelt administration, which swiftly tried the German saboteurs, the Bush administration has no plans to prosecute Padilla. Indeed, since President Bush's order authorizing military tribunals for accused terrorists does not apply to citizens, Padilla cannot be tried as long as he remains in the Defense Department's custody. "If it came to a point of prosecution," Wolfowitz told NBC, "then he would have to go back into the civil court."
It may never get to that point. The evidence of a terrorist conspiracy is looking less substantial every day.
"We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb,' " Ashcroft said when he revealed Padilla's arrest, citing "multiple independent and corroborating sources."
The next day, however, Wolfowitz told CBS: "I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds....It's not as though this was a plan that was on the verge of being executed....He was still in the early stages."
By some accounts, Padilla might never have gotten further than that. "Officials said that the bomb plot was interrupted in its earliest phase and that Mr. Padilla, a low-level gang member with a criminal record, was an unlikely terrorist with no technical knowledge of nuclear materials who was arrested long before he represented a terrorist threat," The New York Times reported. "The officials added that it was unlikely that Al Qaeda would have ever trusted a non-Arab like Mr. Padilla with an important operation."
Perhaps it's not surprising, then, that the government chose not to prosecute Padilla. But if it's allowed to keep him imprisoned anyway, a lot will hinge on the president's ability to determine who is thinking about becoming a terrorist. And unlike the police in Minority Report, he won't have any psychics to consult.
© Copyright 2002 by Creators Syndicate Inc.
Jacob Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, write or call the editorial page editor.
There's no provision anywhere in the laws of the United States for holding a man because he's a slimeball, or because he has creepy associates. If we're going to use the rationales of warfare to detain Padilla as an enemy combatant, they have to be tied to something objective and meaningful, such as capture on a field of battle or in the process of committing an act of espionage or sabotage. Finally, there's no provision for suspending the writ of habeas corpus except uniformly, i.e., for all of us, such that its protections no longer bind the government in any way. Quite obviously, to say that only certain persons should no longer have habeas corpus protection is to license selective persecution.
I have yet to hear anyone allege secret evidence that would make it possible to indict Padilla on a recognized charge. I suppose that if they're going to classify him as a captured enemy soldier, that problem is of little import. But it's vital that we have some rules and some consistency about this, extraordinary times or not. Martin Niemoller's Lament applies!
Freedom, Wealth, and Peace,
Francis W. Porretto
Visit the Palace Of Reason: http://palaceofreason.com
May I remind you this fellow is not being detained for singing too loudly in the choir. He is an enemy combatant.
You've begged the very question I posed. By what standard has he been classified "an enemy combatant"? What did he do? Where was he captured? What was he doing when he was taken? Is there anything objective behind this attribution, or was it just DOJ's decision that, since we can't indict him, we'll turn him over to the Defense Department, since they don't have to?
We have to have rules and standards about this sort of liberty-abridging decision, or we are not a nation of laws. Politicians and bureaucrats must not be permitted to make such decisions arbitrarily. It's unfortunate that a lowlife like Padilla has to be the test case, but it's been said many times that the true test of one's beliefs about rights is whether he's willing to defend the rights of someone he personally finds noxious.
Freedom, Wealth, and Peace,
Francis W. Porretto
Visit the Palace Of Reason: http://palaceofreason.com
El wrongo!! Constitution provides for the suspension of habeous corpus in the case of invasion or rebellion. History notes that this has been done more than once to invading espionage agents and to others during the War between the states. These actions were reviewed by the USSC and deemed constitutional.
This "war" with terrrorists or islamicists or leftists or whatever is going to get real messy if we allow them to use our own misguided courts to protect them from the righteous retribution of a pissed off government!
http://www.freerepublic.com/focus/news/700861/posts
As I said, this guy wasn't detained to for singing too loudly in the choir.
As many have pointed out, if we apply your standards, then we will have to provide a lawyer to every terrorist who will promptly advise his client to divulge nothing. Quite frankly, this makes as much sense as those who emasculated our intelligence capabilities in the past by insisting we only recruit spies who could meet the standards for sainthood.
Since so-called dirty nuclear bombs are all the rage these days, suppose that we believe that a person has the ability and inclination to perform this act?
Even if we were perfectly certain that we could capture the perp after the act, we know that punishment of any sort is unlikely to deter. The terrorists have shown that they are willing - nay, eager! - to die for their cause. Historically, our concept of law has been to let the crime happen, and then to prosecute; but can this model work against a class of criminal who kills many people - literally thousands at a time - and arranges to die in the process?
If we don't preempt terrorists, then we increase the liklihood of their success. Are we willing to pay the price in American blood?
More pointedly, would any of us be willing to stand up in front of children, spouses, and parents of burned, blasted, and terminally radiated victims and take responsibility for not detaining a potential mass murderer?
As for me, I continue to support the President and Attorney General Ashcroft.
What about U.S. citizens? If a citizen is determined to be in the company of known terrorists who otherwise would qualify for ruthless military attack due to their plotting our destruction, then detaining him seems prudent ("the Constitution is not a suicide pact," etc.)
But we should not kid ourselves -- this is what dictators always claim as well. THE difference is precisely the American culture of vigorous, democratic debate. In other words, this is being done correctly -- the Bush administration did not detain this guy in secret. The political process and public opinion counts in this country. A president rounding up political enemies and claiming they are terrorists would not work here. If that ever changes, hopefully there would be a backlash and the courts, Congress, and people would intervene in time. American dictatorship is less a threat than American suicide by political correctness, at least today.
what did he do?
I've asked others , but no one responds......
you have made a very good point, although I am concerned about the doors this sort of thing could open, the fact that this is a PUBLIC event garners a gold star for GW
I do think, however, that we need to try people like this dirty bomber and the Marin county guy for TREASON. It seems to me that "aiding and abetting" enemies of the United States shouldn't be difficult to prove.
With regard to the timeline cited by Duke, while it does reinforce the picture of Padilla as a lowlife no decent person would associate with, the only thing there pertinent to his current detention is the allegation that he associated with al-Qaeda. But war is an armed confrontation between states. As al-Qaeda is not a state but an underworld organization, and the United States is not at war by Congressional declaration, it is not clear to me, nor to many others, that this sort of guilt-by-association is sufficient to warrant a classification of Padilla as an "enemy combatant."
The business about "providing a lawyer to every terrorist" is a straw man, and a cheap straw man at that. An "enemy combatant" is a man taken prisoner under combat conditions or immediately after, who is either in enemy uniform or has been seen fighting against one's own forces. The Geneva Convention and the traditions of warfare sanction this sort of detention, at a battlefield officer's discretion.
Padilla, a lone individual at the time of his capture, was arrested, not taken prisoner on the battlefield. He was in no uniform. Unless I've missed something, he was in possession of no contraband. The knock against him, never made as a formal charge, was that he'd associated with members of al-Qaeda. It sounds very bad -- always assuming that the government was accurate in its identification of these other al-Qaeda members and is being honest about the claim -- but it's still not illegal. Unless the treason clause applies -- "giving aid and comfort to the enemies of the United States" -- we lack an appropriate standard by which to defend this detention. (And if it does, then charge the bastard! Don't grant him the dignity of a captured soldier!)
A man isn't a terrorist just because someone in the government calls him one. He's a terrorist because he's demonstrably committed, or conspired to commit, acts of indiscriminate violence against a civilian population. An individual held by the government under the rules of warfare should have demonstrated something more ominous about himself than just traveling abroad and consorting with scum -- or we'd have to incarcerate Dan Rather and most of his colleagues in broadcast journalism! Not that that's necessarily a bad idea, mind you.
Freedom, Wealth, and Peace,
Francis W. Porretto
Visit the Palace Of Reason: http://palaceofreason.com
So because you assume that politicians and/or bureaucrats have made their decisions regarding padilla arbitrarilly, he should be free to continue his plot to murder as many Americans as possible.
Yeah, that's the voice of reason all right.
Perhaps an over-simplification, but please consider the following analogy: You and your loved ones have a valid threat of bodily harm from a fanatic who has vowed to kill you. He shows up in your neighborhood. What will you do...wait for him to do something before you act? Obviously as a man of reason you would not run out in the street and kill him but you have an alternative... you have the option to remove this fanatic from a position of threat, until such time as he is no longer a danger to yourself or loved ones.
Personally I find this an acceptable option.
So those who only "associate" with al-Qaeda should be granted entry into the United States, should not be detained or questioned about their "association", and should be provided a lawyer at government expense to ensure their rights are not trampled?
"But war is an armed confrontation between states. As al-Qaeda is not a state but an underworld organization, and the United States is not at war by Congressional declaration, it is not clear to me, nor to many others, that this sort of guilt-by-association is sufficient to warrant a classification of Padilla as an "enemy combatant.""
We are at war despite all the rhetoric. You may disagree with the format chosen to declare war, but it was declared none the less.
"The business about "providing a lawyer to every terrorist" is a straw man, and a cheap straw man at that."
If this is such a "strawman", then why do you insist upon a court appearance?
"An "enemy combatant" is a man taken prisoner under combat conditions or immediately after, who is either in enemy uniform or has been seen fighting against one's own forces. The Geneva Convention and the traditions of warfare sanction this sort of detention, at a battlefield officer's discretion."
Or the discretion of the Commander in Chief. So what's your point?
"Padilla, a lone individual at the time of his capture, was arrested, not taken prisoner on the battlefield."
And, subsequently, taken into custody by the military. Regardless of the path, he's where he should be.
"He was in no uniform. Unless I've missed something, he was in possession of no contraband. The knock against him, never made as a formal charge, was that he'd associated with members of al-Qaeda."
"Formal charge"? There you go again, trying to make a legal case out of this. I thought my argument about providing lawyers was a "strawman".
"A man isn't a terrorist just because someone in the government calls him one. He's a terrorist because he's demonstrably committed, or conspired to commit, acts of indiscriminate violence against a civilian population."
Now, that's a "strawman". The government didn't just "call him" a terrorist. The man has gone out of his way to demonstrate his terrorist roots.
"An individual held by the government under the rules of warfare should have demonstrated something more ominous about himself than just traveling abroad and consorting with scum"
One must assume that if nineteen or twenty young muslim males with links to al-Qaeda, carrying extremist Islamic tracts and boxcutters, showed up at an airport, you'd demand they be allowed on the airplanes. After all, what else had they done but "traveled abroad and consorted with scum"? Why should they be denied their right to fly with out due process?
Don't give us this rally-round-Old-Glory bull.
Washington has - through its lies - killed far more Americans than al-Qaeda. From Lyndon Johnson's getting us deep into Nam by his falsified Gulf Of Tonkin "incident" that never happened (result: 58,000 Americans died) to the Tuskeegee syphilis experiments on unknowing and unconsenting black Americans, Washington has killed far more Americans than bin Laden could hope to.
Padilla is a punk and a traitor - but Washington used no standards of any kind in handling his case. (What specific reasons are there for which he is indefinitely detained as an "enemy combatant" while actually captured-on-the-battlefield Johnny Jihad gets a civilian trial?) (What specific standards mean an Arab of naturalized French citizenship who was the "20th skyjacker" - and would also "have killed thousands" - is entitled to a U.S. civilian trial, while Padilla isn't?)
If Padilla - as I believe - really was planning a dirty nuke for al-Qaeda, he was undoubtably guilty already of something under ordinary federal criminal law that he could have been prosecuted for and gotten a long sentence for. Conspiracy sounds virtually certain; violation of various federal antiterrorism statutes, too.
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