Alleged but not proven
September 1, 2002
The case of Jose Padilla, the American Muslim locked up as an "enemy combatant" in a South Carolina brig, has been largely overshadowed by the other major enemy combatant case -- that of Yaser Esam Hamdi. It has moved more slowly and with fewer fireworks. But it is even more disturbing. For not only is Mr. Padilla an American citizen being held indefinitely without charge or access to counsel, but he was yanked out of the civilian justice system when the burdens of that system grew too heavy for prosecutors' tastes. Unlike Mr. Hamdi, who was captured in Afghanistan -- where the government contends he was attached to a Taliban unit -- Mr. Padilla was arrested in Chicago in May by FBI agents under a material witness warrant issued by a federal court in New York. Mr. Padilla's case is, therefore, a real test of how easily the president may, by declaring someone an enemy combatant, deprive him of all the protections the Bill of Rights promises -- even after first subjecting that person to the normal criminal process.
Last week, the Justice Department filed its answer to a challenge to his detention by Mr. Padilla's lawyers, who have not been permitted to meet with their client in his military prison. As in Mr. Hamdi's case, the answer took the form of a brief declaration by Defense Department official Michael Mobbs. The statement is more substantial than the one he filed in Mr. Hamdi's case, but once again, Mr. Mobbs claims no firsthand knowledge of the evidence he cites. And once again, the government takes the view that the court may look no further than the allegations contained in this six-page document.
The allegations certainly are disturbing. According to the declaration, Mr. Padilla "has been closely associated with known members and leaders of the Al Qaeda terrorist network." He trained at al Qaeda camps and "met with senior Osama Bin Laden lieutenant Abu Zubaydah," whom he approached "with [a] proposal to conduct terrorist operations within the United States." He discussed a plan "to build and detonate a 'radiological dispersal device' . . . within the United States, possibly in Washington, D.C." And "it is believed that Al Qaeda members directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of Al Qaeda."
But for the long-term detention without trial of an American citizen, our system typically demands more than allegations. In this instance, the Mobbs declaration itself provides reasons for caution. The government concedes that its intelligence sources "have not been completely candid about their association with Al Qaeda and their terrorist activities" and that "some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials." Without some reality check, there is no way to have confidence that Mr. Padilla is what the government claims.
On Wednesday, the United States indicted five people in Detroit for conspiracy to support international terrorism. Is there a reason, other than the weakness of a case Attorney General John D. Ashcroft initially trumpeted, that Mr. Padilla cannot be similarly dealt with? As a matter of law, there may be times when even U.S. citizens should be designated enemy combatants or prisoners of war; it has happened before. But to yank an American out of the court system and then maintain, purely on the government's word, that he is not entitled to challenge the evidence against him is a breathtakingly radical act. As his lawyer, Donna Newman, put it, "Is [the evidence] written on the bathroom wall? Is it firsthand knowledge, secondhand knowledge, third, fourth? And how can I refute it? I can't see my client." Eventually, the courts will have to confront the question -- as in the Hamdi case -- of whether the government's say-so alone can carry the day. Among the many confrontations between civil liberties and the war on terror, the government is advancing no contention more dangerous.