Posted on 09/20/2002 7:12:27 AM PDT by DWPittelli
Trial run Jacob Sullum September 20, 2002
The federal government recently charged six men from Lackawanna, N.Y., with providing material support to Al Qaeda by undergoing training at one of the network's camps in Afghanistan. There, according to prosecutors, they received indoctrination in terrorism, a pep talk from Osama bin Laden, and instruction in the use of assault rifles, handguns, artillery and anti-aircraft guns.
The authorities say the men, U.S. citizens of Yemeni descent, returned to the United States as a "sleeper cell," awaiting orders to attack. But despite their alleged commitment to violence against Americans, they are not to be confused with the "enemy combatants" whom the Bush administration says it can keep in military custody indefinitely without charge or legal representation.
To the contrary, the six accused terrorists were promptly arraigned and given a bail hearing, at which they were all represented by attorneys. Barring a plea agreement, they will eventually go to trial, where the government will have to prove its case beyond a reasonable doubt. If it does, they could receive sentences of up to 15 years.
Jose Padilla could be imprisoned just as long or even longer -- in his case without a trial. When the FBI arrested Padilla last May, it said he had met repeatedly with leaders of Al Qaeda, undergone training in the use of explosives, and studied the mechanics of "dirty bombs."
Like the Lackawanna Six, Padilla is a U.S. citizen with alleged ties to Al Qaeda but no specific plans to carry out an attack. Unlike them, he was classified as an enemy combatant with no right to due process. He is being held incommunicado at a Navy brig in Charleston, S.C.
If anybody qualifies as an enemy combatant, you'd think someone who actually took up arms against U.S. forces would. Yet John Walker Lindh, captured last fall while fighting with the Taliban in Afghanistan, was charged in federal court. The California native was scheduled for trial until his July 15 plea agreement, under which he received a 20-year sentence.
Like Lindh, Yasser Hamdi is a U.S. citizen captured while fighting in Afghanistan. Yet he has been placed in the same legal limbo as Jose Padilla, held by the Defense Department without charge or access to a lawyer. The government says he has no right to challenge his detention because President Bush's finding that he is an enemy combatant cannot be reviewed by the courts.
Unlike Lindh and Hamdi, Zacarias Moussaoui is a French citizen of Moroccan descent. He is accused of being "the 20th hijacker," prevented from participating in the Sept. 11 attacks only because he was in custody at the time. He is scheduled to be tried in federal court early next year.
Similarly, Richard C. Reid, accused of trying to set off a bomb concealed in his shoe on an American Airlines flight from Paris to Miami last December, is a British citizen. Yet he is being held in civilian custody and is scheduled to be tried in federal court this fall.
No wonder the Bush administration insists that its decisions about how to deal with suspected terrorists cannot be second-guessed by judges. If there is any legal logic to the government's determination of which accused terrorists deserve due process and which do not, it can be discerned only by minds keener than mine.
Not only is there no apparent rhyme or reason to the treatment of these cases; there does not even seem to be a trend over time. Some legal scholars who defend the administration had predicted that it would increasingly avoid civilian courts as the war on terrorism progressed. That hypothesis was refuted by the decision to charge and try the men from Lackawanna rather than simply locking them up in a brig.
Meanwhile, the military tribunals that President Bush authorized last fall have yet to be used. The administration said U.S. citizens would not be subject to the tribunals, which have looser rules of evidence and do not allow appeals to civilian courts. That sounded like a concession to critics, until it turned out that the alternative to trial by military tribunal could be no trial at all.
The standard the government is applying seems to be something like this: When you've got enough evidence, prosecute. When you don't, hand the suspect over to the Pentagon.
So perhaps the administration is following a rule after all. It just isn't the rule of law.
In “Trial run” you assert that the Bush Administration has decided to use civilian courts where they have good evidence, and POW status and/or military courts where they do not. But of course, you do not know what evidence they have in the military cases, or even in most of the civilian cases, the trials not having been concluded, and Lindh having plead guilty.
You also assume that it is easier or more fair for the defendants if they are tried in civilian courts. This is certainly true insofar as rules of evidence are concerned, but not necessarily in terms of outcome or length of imprisonment. I understand that Lindh will serve 17 to 20 years, which may well be more than any of the POWs will serve (impossible to know, of course).
You have overlooked another possible rule that the Bush Administration could be using, which also fits the facts and a reasonable understanding of what an “enemy combatant” is, as distinct from someone who is aiding the enemy. In cases where the defendant is caught in the Middle East, or immediately upon arrival from the Middle East, he will be treated as an enemy combatant, a prisoner of war. No trial is needed, but punishment is limited to imprisonment for the duration of the conflict (which may be a long time, certainly, and the end will probably be determined by a future President, not Bush).
The only exception to this rule is the case of Lindh. But despite your assertion that “there does not even seem to be a trend over time. Some legal scholars who defend the administration had predicted that it would increasingly avoid civilian courts as the war on terrorism progressed,” his sole exception to the above rule probably is related to the fact that he was arrested earliest, when the trial policies were being worked out, and as I stated above, the fact that he was a citizen and facing a civilian trial, leading to his plea agreement, did not give him any advantage over the POWs, and also got him to agree to cooperate with the U.S. (you and I do not, of course, know how helpful he is).
Finally, the fact that U.S. citizens are not subject to military tribunals is in fact a concession even though some are getting no trials at all. As POWs they are only subject to imprisonment – albeit for unstated terms – while the only real purpose of a military tribunal would be to get a death penalty for war crimes.
Second, there are mechanisms for an American to lose his citizenship, and they're spelled out in every American passport. However, the wording say may lose citizenship. That means that someone looks at the case, and decides whether the schmuck is still a citizen or not.
Since passports come under the authority of the State Department, it's an executive function. There may be some obscure law that dictates how this citizenship board functions. Or maybe there isn't. Perhaps it's done under the department's general grant of authority to organize itself, just like it organizes the summer picnic committee.
In either case, if determination of citizenship was within the purview of the judicial branch, we would have heard of it already. That means the final decision on someone's status rests solely in the hands of the executive.
To prevent this from being arbitrary and capricious, one has to leave the US first, and then participate in the activities mentioned on the passport. When captured, someone in the DOJ will determine whether they still consider you a citizen, or an enemy combatant.
Personally, all of the clowns they're treating to a regular court trial seem like enemy combatants who do not conform to the Geneva Convention to me, and should just be disappeared into some black hole. But for whatever reason, they're being treated as citizens, although a bit wayward in what they did. I don't know why the government is doing it that way, but it sure seems legal and constitutional, even if it seems to be a tactical mistake.
I agree with you. Nonuniformed combatants (and/or war criminals) can properly and legally be executed summarily (or after military trial). I also agree that that would probably be a good idea in many cases (granting leniency, naturally, to those who prove of immediate use in providing intelligence to us).
At the very least, one or two such executions would make a point that this war is to be taken seriously. But these arguments seemed beyond the scope of what I was reacting to (Jacob Sullum's article in Reason Townhall).
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