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.
Precisely. The rules can and should be somewhat different for these cases (given the legitimate need to keep certain secrets), but they can't be thrown out completely.
That Constitutional provision is, of course, available to President Bush at any time that he feels capable of accepting the personal responsibility of invoking it.
I'd insist that the police go arrest him (death threats are against the law) and provide what evidence I could to aid in convicting him. Next silly straw man?
But of course! The President of the United States would never lie to us!
Naaaah... You pretty much covered it! Thanks. (:>)
Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United
The congress authorized the president to use the law of war against this guy.
He has the habeous corpus right to have this reviewed by a court.
I can see no other way than to have the miitary determine who is a combatant- subject, for US citizens, to a review by the courts.
Instead of concern over the use of military power on American soil against americans ( which has been constitutionally authorized and is patently unavoidable in this situation), it seems to me that your worry is more over "bills of attainder" by the legislature against US citizens. That is what this matter could be classed as, IMHO, if Padilla was tried by tribunal.
That's not easy. One must "make the opportunity to commit the crime" available, but not entrap. So if the bad guys contact a UC officer or informant, and they ask to buy a nuke (or automatic weapons, or lots of other things), then one can, as you suggest, prosecute.
However, if the terrorists are a closed cell, the process doesn't work. Unfortunately, they frequently know each other quite well...
To do the job, one would need to recruit covert informants who would then become devout moslems. They would attend the mosques, befriend the members, and get in the loop that way. But keep in mind, you're looking for a very special kind of CI....one who is willing and able to function undercover for 24 hours a day, 7 days a week. One willing to avoid all family contacts, or willing to put their family on the line...because you can expect that the bad guys will want to meet the new convert in his home before they really start talking about criminal acts.
It's one thing to let a few dopers get away. But quite another to let a terrorist hurt and kill a great many innocent people. And for that reason, I do believe that some of the constitutional guarantees we have enjoyed will need to be set aside for the duration. And no, I don't like it any better than you do.
John Gotti was a slimeball and then some. He was free until the day of his conviction by a court.
In 1946, Nazi enemy combatants were detained, tried by tribunal and executed. The category of enemy combatant is quite bright. Perhaps we should just execute today's enemy combatants rather than the more (apparently) humane action of detention.
If these people operated in Afghanistan we would attack them. Just because the enemy soldier has made it to our shore, are we supposed to give him complete freedom until he irradiates a city?
This has no comparison with the Department of Precrime.
Unless I'm mistaken, I observed a battlefield in NYC. The battlefield is here.
He is detained because he is an enemy soldier who is functioning as a sabotuer during a time of armed conflict.
What is the problem with attacking the enemy? Or does he enemy obtain 'safe harbor' should he reach our border?
Just because these people do not wear uniforms like in the civil war, or take orders from a gov't like in WWII does not make it any less of a war. It is not a war in a common conception, but it is a real war.
...
One day they came and they took the terrorists,
And I said nothing because I was not a terrorist?
This not-a-state just took out a third of Manhattan at the start of this not-a-war. For the past 10 months we have not been fighting this 'underworld organization,' not-at-war-with the US using Special Forces, B-52s and aircraft carriers.
You are so caught up in your Aristotilian categorizations and old conceptions of what a war is 'supposed' to be that you have missed the plain fact that war has begun whether you agree to it or not.
That has nothing to do with it. Rather, we as a society need to decide whether we are going to protect ourselves...or not.
Suppose, for a moment, that YOU are President. There's a chance...not a big chance, but a chance nonetheless...that a terrorist will will hundreds and make a radiological mess of a square mile in a major American city.
Will you act to save the people? Or not? And what about when the press asks what you knew, and when you knew it?
My choice is clear. I would stop the terrorists using any tool I could. I recognize that his is at variance with the ideals of others....
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