At War: No Ordinary Crime - civil rights during wartime - Brief Article

National Review, July 15, 2002

Free Jose Padilla! That would be the cry of the civil libertarians if they were to follow their opposition to Padilla's military detention to its logical conclusion. The fact is that the Dirty Bomb suspect, a U.S. citizen, has committed no crime (unless it's illegal even to talk to members of al-Qaeda), and evidence about him has probably not been gathered in keeping with all the rules of the U.S. criminal-justice system. If Padilla should be treated by the normal rules, as critics say, he should be held for a time as a material witness and then let go. He would then walk free until he engaged in a criminal conspiracy that could be nailed down with enough specificity to try him in a U.S. court.

Following the normal rules of the criminal-justice system, however, would be an insane way to run a war. The liberal legal scholar Laurence Tribe, writing in the New York Times, was able to grasp the point: "[R]eleasing captured soldiers who belong to an enemy force committed to the murder of American civilians -- whether that force is the army of a nation-state or of a transnational organization like Al Qaeda -- is suicidal."

Critics fret that Padilla's example shows that the federal government can reach down and designate any U.S. citizen an "enemy combatant," denied all legal rights. (Bear in mind that, so far, this has happened to two U.S. citizens.) But habeas corpus has not been repealed. Padilla's representative can and will challenge the constitutionality of his detention in court. Then he will lose, in all likelihood, because case law, and a fair reading of the Constitution, indicate that the president has the power to designate "enemy combatants" and that the courts should conduct their review of cases like Padilla's with deference to this authority (contravening it only if the executive is clearly operating arbitrarily).

Without this power, how could any president run any war? There is no reason to believe that U.S. citizens are exempt from the executive's authority to designate "enemy combatants" (the Supreme Court addressed this very question in the 1942 Quirin decision). So if the executive can't designate Padilla an "enemy combatant," it shouldn't be able to designate anyone else as such either. Or, indeed, to make any combat- related decisions at all. A court would have to sit in judgment of every single bombing target in Afghanistan. That Padilla was caught at O'Hare instead of Mazar-e-Sharif certainly counts for something -- we wouldn't drop a bomb on him here. But the administration's critics seem to think that we can treat our enemies as "enemy combatants" only when they are defensively deployed in Afghanistan.

Perhaps the administration should, as part of its emerging system of military detention and trials, create a process to review the facts in cases like Padilla's. But terrorists are not ordinary criminals. They are combatants in a declared war against the United States. If they have lawyers and Fifth Amendment rights, they will be able to refuse to tell us anything other than that we should have read them their Miranda rights more carefully (witness the John Walker Lindh trial). Intelligence is crucial to our fight, and interrogation is a crucial way get it. Which is why Jose Padilla needs to sit in a military brig somewhere thinking he is going to have absolutely no recourse for the next 15 to 20 years.