The Worst of Both WorldsThe false choice between treating terrorists as criminals or soldiers.
Posted Tuesday, Aug. 14, 2007, at 6:43 PM ET
Last week in a New York Times op-ed, former presidential candidate Wesley Clark and UCLA professor Kal Raustiala offered up a new sally in the long-running national debate over whether to treat captured terrorists as criminals or soldiers. They vote—for some compelling reasons—for treating the terrorists like criminals. It's a useful thought experiment, one I myself have engaged in on occasion. But we should probably stop kidding ourselves that anyone, outside newspapers and academia, is strictly choosing between these two systems. Criminal vs. soldier is not a dichotomy the Bush administration accepts. It never has. This president likes to have it both ways: tending to treat terror suspects as soldiers or criminals as suits his purposes. The innovation of his lawyers has been to tack back and forth between the military and criminal law systems, thus avoiding either's constraints.
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StumbleUponPresident Bush has long taken the position that criminal trials don't work when it comes to punishing terror suspects. As then-Deputy Assistant Attorney General James Comey once said of the government's decision not to charge alleged "dirty bomber" Jose Padilla in criminal court: "He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. ... He would likely have ended up a free man." But then, neither has the president been any more inclined to treat Padilla and his ilk as soldiers, who—as the Supreme Court has affirmed—would be entitled to at least basic protections under the Geneva Conventions and the laws of war. When he wants to deny someone a right to counsel, the president argues for treating him like an "unlawful enemy combatant." When he wants to interrogate a combatant in violation of the laws of war, the president insists the detainee is a criminal.
At Guantanamo and the CIA "black sites," two Bush administration inventions, both the criminal laws and the laws of war could be disregarded in about equal measure. We now know why this is so. The government initially cared about enemy captives only as sources of information to be interrogated up to (and then beyond) the legal bounds. What would be done with them afterward was not terribly important.
Which brings me to the closing arguments in the Jose Padilla trial, concluding Tuesday in a Miami court. Padilla was an American citizen, arrested without weapons in his street clothes at a Chicago airport in 2002. His case reveals in starkest relief the administration's bounce-around strategy. Padilla was shuttled out of the criminal justice system and into military detention on the eve of a court hearing to determine whether his continued detention was lawful. He was tossed back into the criminal justice system only when an airing of his claims at the Supreme Court became imminent. These moves were all part of a government effort to dodge judicial oversight. But just to be crystal clear: When Padilla was not in the criminal justice system, he was hardly treated as a prisoner of war. And when he was not in military detention, he was not being treated as a criminal defendant. The administration's trick throughout Padilla's five-year ordeal was to appear to comply with one of two legal regimes without actually utilizing either.
The government's shell game explains what has disappeared from the trial that ended Tuesday. There's no longer talk of the "dirty bombs" or even of "apartment bombs" that once justified the decision to treat him as a battlefield combatant. Also stilled are discussions of how Padilla was isolated and interrogated for three and a half years until he "confessed." Those are vestiges of the enemy combatant model, dismantled when Padilla was yanked back into criminal court.
What we do see, instead, is yet another attenuated conspiracy theory. In the government's allegations, Padilla's role in the alleged plot to maim and murder third persons in far-flung lands has been limited to participating in a handful of phone calls, in which he said little, if anything, that was incriminating, and to allegedly filling in an application form for an al-Qaida training camp. Assistant U.S. Attorney Brian Frazier mentioned al- Qaida 100 times during his closing statement Monday.
Yet in seeking a life sentence for Padilla for this alleged conspiracy, prosecutors have at no point introduced any evidence of personal involvement by Padilla in the planning or execution of such a terror plot, or even his alleged travel to Afghanistan. As was the case when the government sought to execute Zacarias Moussaoui, the theory of criminal liability may be that it is enough that Padilla wanted to be a terrorist. In that sense, we have a legal theory that may borrow from the worst and most vague aspects of the criminal and military models from which Bush has cherry-picked for so long: Jose Padilla faces a lifetime in prison for having engaged in a criminal conspiracy to be nothing so much as an "unlawful enemy combatant."
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Remarks from the Fray:
Bill of Rights issues are often tested on the worst possible defendants, and Padilla's case is an excellent example. On the one hand, this would-be Al Qaeda terrorist is the kind of person nobody wants to defend. On the other, he has the same rights as everyone else, and there appears to be no evidence of a serious crime.
Padilla seems to be a dangerous person (or at least he was before all this), so giving him a chance at freedom doesn't seem like a good idea. But it would surely be much more dangerous to allow the President the power to arrest and imprison American citizens without trial, merely by designating them enemy combatants. That would be precisely the kind of arbitrary use of power the Bill of Rights was created to prevent.
I am reminded of the Night of the Long Knives in 1934, when Hitler killed about a hundred people, mostly Brownshirts, his own unruly followers. This met with no protest, because the lawless Brownshirts were generally feared and despised by the public . . . But the silence of the "respectable" Germans was a mistake, because if Hitler could ignore the rule of law in this case, he could do it in all cases: If the law did not protect Brownshirts, it protected no one.
--faustling
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Terrorists dehumanize themselves for the purpose of destroying others. Their tactics of using human shields and employing children or women as suicide vectors for weapons... their unwillingness to avoid making civilians their primary targets... all of these put them outside the scope of any protections which are rendered by any law. Defense of their actions is inappropriate, and inhuman.
So... I agree, they are neither criminals nor soldiers. They are outside any lawful society, and thus outside the scope of the protections we give humanity. Unfortunately, they typically kill themselves before it can be done with any due process. However, should there be the opportunity, once their status is confirmed and they are in custody...
--BenK
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The term "enemy combatant" has precisely 1 point of reference in US history prior to 9-11. The real legal precedent for the use of the term "Enemy Combatant" is being established right now, as you read this, by the Bush administration. Whether or not this preposterous term will be legitimized is up to the American public.
This term was deliberately invoked for the reasons stated in the article - to avoid having to prove that a person is a terrorist once they have been accused of it, including US citizens. It is a verbal Guantanamo - a legal black hole, which, by merit of its mere existence and acceptance by the American public, allows for the complete suspension of any and all legal rights.
It is incumbent on anyone who values the rule of law in this country and wishes to affirm that there is, in fact, an ethical difference between us and those we fight to reject the insidious idea of "enemy combatants", because, technically, you meet the definition of one.
--jwschmidt
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This makes me wonder what the Administration's backup plan might be. Padilla clearly is someone they don't want released - his story is both frightening and compelling, and if he's given the opportunity to tell it, many people will be appalled.
Given these constraints, you have to think the Administration will do whatever it can to keep him under wraps. My bet is that the dirty bomb story would come back, and they'd try to charge him for that, hoping that the trial could be put off for another year or so. They might also tack back into enemy combatant territory, perhaps moving him to somewhere outside the suddenly-not-so-compliant 4th Circuit so that they can get a new chance to make their enemy combatant arguments. Whatever they do, they certainly won't let him go.
--randy-khan
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I would argue that the Geneva Conventions don't just help define our values, they define the values of all countries that sign them. The Geneva Conventions lay out the rules of war for countries that think it's important to play by the rules. Rules such as wearing an identifiable uniform, not targeting civilians or using civilians as human shields.
Presumably the countries that sign realize that losing a war while playing by the rules is less bad than fighting a war with no rules. However, there are advantages to not playing by the rules. If you cheat, it often increases your chances of winning.
So what is a signatory country to do when fighting a country or organization that doesn't play by the rules? I would argue that the signatory country is under no obligation to abide by the Geneva Convention when fighting a non signatory country or terrorist group.
If signatory countries have to follow the rules and non signatory terrorists do not, then this gives the terrorists an advantage. This advantage in turn makes it a logical move for other signatory countries to renounce the conventions in order to "level the playing field." The result is a race to the bottom regarding mores and behavior, and war becomes even more barbaric.
The only way to prevent this "race to the bottom" is to demonstrate to the non signatory terrorist groups that there are benefits to fighting by the rules and disadvantages to breaking the rules. Unfortunately this means we need to fight as dirty as the terrorists in order to show them that losing a war while playing by the rules is far less bad than fighting a war with no rules at all. At the moment the terrorists believe fighting with no rules gives them an advantage. We have no choice but to show them they are very, very wrong.
--Orion838
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(8/19)