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RAY SUAREZ: Three U.S. citizens are currently held by the U.S. Government in conjunction with the ongoing war on terrorism. Attorney General Ashcroft announced on Monday the FBI had detained New York native Jose Padilla last month in Chicago. Officials say the man — also known as Abdullah al Muhajir — was planning a dirty bomb – that is radioactive bomb — attack.
Originally held by the Department of Justice as a material witness, he has now been designated as an “enemy combatant.” Padilla currently is being held without charge at the Naval brig in Charleston, South Carolina. Yaser Esam Hamdi also is being detained by the Department of Defense. He is a Saudi national, but was born in Louisiana. Hamdi was captured last year fighting in Afghanistan, and was sent to the U.S. detention facility in Guantanamo Bay, Cuba. When his American birth was discovered, he was moved to a U.S. Navy base in Norfolk, Virginia, and designated an enemy combatant.
Californian John Walker Lindh was also captured fighting in Afghanistan with the Taliban, but he’s in the hands of the Justice Department in Virginia. He goes on trial in August, on ten criminal counts, including conspiracy to murder Americans and providing support and services to foreign terrorist organizations.
Here now to discuss the legal status of these Americans are two law professors: Ruth Wedgwood of Yale Law School and Johns Hopkins University; and David Cole of Georgetown University Law Center and the Center for Constitutional Rights. Professor Cole, let me start with you. Is the United States government within its rights in treating these Americans the way they’ve been treated so far?
DAVID COLE: Well, I think it’s within its rights in putting John Walker Lindh on trial, giving him an attorney, giving him an opportunity to make a defense, putting on its evidence, and if he’s convicted, putting him away for a long period of time. What I think is not justified in doing is what it’s doing to Mr. Hamdi and Mr. Padilla, who are not given a trial, who are not given access to an attorney, who are indeed not charged with anything. And the government has simply whisked them up, taken them in a sense off the streets at the word of the President that they are bad guys, and put them into incommunicado military custody, potentially indefinitely, without any opportunity to disprove the charge that they are a bad guy or an enemy combatant. And that’s unprecedented.
RAY SUAREZ: Professor Wedgwood, how do you view the government’s treatment of these cases so far?
RUTH WEDGEWOOD: Well, the government’s dilemma is that some of the evidence… much of the evidence in which we are basing… they are basing the conclusion that they are combatants may well be classified extremely sensitive. Abu Zubaida, for example, the source in Afghanistan who is the number three in al-Qaida, is the source of much of the information against Mr. Padilla, and he would simply not be available as a witness. The intelligence that the government has gotten against Padilla has been gotten through a very difficult interrogation, which apparently requires that one not let the interlocutor know what the purpose is of various statements solicited from him.
If you brought Abu Zubaida to a courtroom to testify, he’d refuse. So your dilemma is, do you want to let folks go when you have good intelligence that they are involved in such things as terrible as a dirty bomb that would really destroy city blocks and thousands of peoples health, or do you want to simply treat this in a…treat it in a criminal justice paradigm alone? You have to make a choice, really, between evils, here I think.
DAVID COLE: I don’t think that’s really the choice here. The government knew about Mr. Padilla before it arrested him. It followed him for a period of time. If it followed him until he engaged in conduct that was criminal, it could have then charged him with that crime. What it did, apparently, was arrest him before he engaged in any kind of criminal conduct. And they don’t have to wait until the bomb is detonated. They have to simply wait until he takes an overt act in furtherance of a conspiracy. They arrested him before that.
And now they want to hold him despite the fact they have no evidence that they can produce that he’s guilty of anything. And so on the day that they were supposed to either indict him or release him, they simply invoked this extraordinary authority to take a U.S. citizen out of the criminal process altogether and hold him without charges indefinitely on the President’s say so. And, again, we have never done that before. The government says…
RUTH WEDGEWOOD: But the problem…
DAVID COLE: …The government says there is a precedent for this in World War II where we tried an American citizen in a military tribunal. But that’s very different. He could be tried in a military tribunal, but they’re not suggesting that he be tried. They’re suggesting we simply want to hold him without charges, without trial, no opportunity to prove or disprove whether or not he was doing what they say he was doing.
RAY SUAREZ: Professor Wedgwood, go ahead.
RUTH WEDGEWOOD: Well, no one’s ever had to decide what the informational status, evidentiary status, standard is for deciding if somebody is a combatant. And it’s al-Qaida that has posed this dilemma for us because you are not supposed to fight out of uniform. And al-Qaida is the one that has chosen to violate the rules.
The problem here, I wish that law enforcement ever could be as efficient as my friend David Cole wants it to be. There’s no such thing as a close surveillance where you don’t take a significant chance of losing the person. And if Padilla goes off on his merry own and slips the traces and hooks up with an al-Qaida cell elsewhere in the U.S., I wouldn’t want to follow the consequences. So the problem is you really can’t afford to let the string play out as you might if it were just a bank robbery or even a murder. In this kind of case where it’s catastrophic harm, the government’s put to a very hard choice of having to act to prevent the harm.
RAY SUAREZ: But, Professor Wedgwood, when David Cole talks about holding someone perhaps indefinitely, is there a point where the definition of Jose Padilla as an enemy combatant, of Yaser Hamdi as an enemy combatant begins to sort of pass its sell-by date, where the government must sort of either put up charges or make some other arrangement?
RUTH WEDGEWOOD: Well, these are American citizens, so I think everybody wants to tread very cautiously. The Constitution is present, no matter what we do. Everything we do is under the Constitution. But as we said often, the Constitution is not a suicide pact. I think we can get to the problem of indefinite later. Right now is immediate. It’s the attempt to roll up the networks that might be interested in putting together a bacteriological or a radiological bomb. And the worries about the year 2020, really, I think are at the moment something that can be put forward in our consideration. I mean, ultimately I think that the administration does need to think through carefully how it wants to treat citizens in the future. It’s a delicate issue. It’s one that it’s good to bring Congress on board with.
These issues will inevitably come to court through habeas corpus review because when Americans are in jail of any kind or custody of any kind, they can demand to know the basis for their detention. And I do think the administration will get the most deference from the courts if it can show that it’s followed a regular process, either through a Presidential certification of reasons or even using the military commissions to do a second look at the facts, or adapt something like the FISA Court, the Foreign Intelligence Surveillance Act Court to give us a corroboration. But the problem is to protect the intelligence, you need to interrupt the plot of great proportions and yet, at the same time, make sure that some mistake hasn’t happened and the…
RAY SUAREZ: Have the rules changed in midstream, Professor Cole? When this all started and the military tribunals were first brought up, wasn’t there some assurance offered that American citizens would not be subject to these tribunals?
DAVID COLE: Well, absolutely there was. When the military tribunal order was announced, it was specifically limited to non-citizens, and the administration said in effect, “Americans don’t worry. Your rights are not in the balance. It’s their rights, non-citizen rights that we are denying.” The detention in Guantanamo of hundreds of people without charges indefinitely, the government said, “Well, those are non-citizens, not citizens.” So this whole notion of military custody, military justice, military tribunals was introduced as limited to non- citizens, and yet we see now that the government has elided that distinction and applied the same kind of justice, or lack there of, to U.S. citizens.
RAY SUAREZ: What about when in a case such as Professor Wedgwood points out, the stakes are so high, a conspiracy to use a radioactive bomb in one of the cases, in an American population center, does that what do you call eliding suddenly look like just prudence?
DAVID COLE: Well, I don’t think so, because it’s one thing to say, “look, there are very serious threats here, and we need to tailor our process to take account of those threats.” It’s another thing to assert the power to lock a person up without any charges, without any process, without even access to an attorney. I mean, Ruth says, “well, there is habeas corpus, et cetera.” He’s being scene denied access even to an attorney; the same thing with Mr. Hamdi.
A federal judge has ordered that Mr. Hamdi be given access to an attorney, and the government is still refusing to give him access to an attorney. So this is not sort of amending the process to deal with a serious threat. It’s throwing the process out altogether and saying, “we now have the authority to unilaterally declare people bad people and to lock them up without any process whatsoever, without any hearing whatsoever. That’s not a balance, that’s throwing all constraint on government power out the window.
RAY SUAREZ: Professor Wedgwood?
RUTH WEDGEWOOD: Well, I have to chide my friend David because on a number of other panels we’ve done, he’s often criticized the distinction drawn between aliens and citizens and said that we shouldn’t do to aliens what we won’t do to citizens. But here I think nobody anticipated that any American would be interested in fighting with al-Qaida, certainly not against their own country, maybe in Kashmir. But I think these are facts that people on the Hill, in the community, in the press, in the Executive Branch didn’t expect and certainly feel chagrined by, but the facts are the facts. And if you have a guy who is weird enough or bad enough to do what he is doing, declare him a bad man.
We’re declaring him… or the President is declaring him to be involved in a very, very dangerous set of plans and expectations. And one has to do something about that. You can’t just let him wander around until ten years from now, we happen to have proof beyond a reasonable doubt so we can stick just to one legal paradigm. The law of war lets you detain combatants until the active hostilities are over. We’re detaining lots of people in Guantanamo just on that basis. In fact, all three gentlemen who were or are in detention were at one or more times in Afghanistan involved with al-Qaida. This is not a shoemaker from Houston who was simply a sympathizer. These are active people involved, and indeed there is a conspiracy that’s been satisfied if we can base our judgment on intelligence information because he agreed to do this, and he’s taken many steps to do this. Mr. Padilla, if this were admissible evidence, would be guilty of conspiracy.
DAVID COLE: But the point is that even if he were a shoemaker in Houston, there would be nothing to stop the government from doing exactly to him what they did to Mr. Padilla. That is, there is no standard for enemy combatant. There is no hearing to assess whether he’s an enemy combatant. There’s no trial whatsoever. And so again, yes, we can say we might need to take extraordinary measures, we might need to adapt the processes of the criminal law, we might even subject U.S. citizens to military tribunals. But to take someone and lock them up without a trial, without any hearing and to justify it by saying, “well, the President thinks he’s guilty,” that’s just not the way the democracy is run.
RAY SUAREZ: And a quick response, Professor Wedgwood?
RUTH WEDGEWOOD: That’s not been the assertion. The choice so far has been between military detention and full-blown public criminal justice. Maybe there needs to be something invented in the middle, but the answer is not to bury your intelligence sources and endanger your fellow citizens, not in so serious a threat as this.
RAY SUAREZ: So, quickly, as far you’re concerned, the government is acting not only appropriately but doesn’t have to go any further than it’s gone so far?
RUTH WEDGEWOOD: Certainly in Mr. Padilla’s case, I don’t think they have much choice. I do think, long run, they should want to think through methods of giving assurance to the judges who will inevitably review these cases on habeas corpus, that careful factual determinations were made based on intelligence, but to do that in a way that does not compromise any of the intelligence sources.
RAY SUAREZ: Professor Wedgwood, Professor Cole, thank you both.