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In Terror Cases, Administration Sets Own Rules
By ADAM LIPTAK
11/27/05 "New
York Times" -- -- When Attorney General Alberto R.
Gonzales announced last week that Jose Padilla would be transferred
to the federal justice system from military detention, he said
almost nothing about the standards the administration used in
deciding whether to charge terrorism suspects like Mr. Padilla with
crimes or to hold them in military facilities as enemy combatants.
"We take each individual, each case, case by case," Mr. Gonzales
said.
The upshot of that approach, underscored by the decision in Mr.
Padilla's case, is that no one outside the administration knows just
how the determination is made whether to handle a terror suspect as
an enemy combatant or as a common criminal, to hold him indefinitely
without charges in a military facility or to charge him in court.
Indeed, citing the need to combat terrorism, the administration has
argued, with varying degrees of success, that judges should have
essentially no role in reviewing its decisions. The change in Mr.
Padilla's status, just days before the government's legal papers
were due in his appeal to the Supreme Court, suggested to many legal
observers that the administration wanted to keep the court out of
the case.
"The position of the executive branch," said Eric M. Freedman, a law
professor at Hofstra University who has consulted with lawyers for
several detainees, "is that it can be judge, jury and executioner."
The government says a secret and unilateral decision-making process
is necessary because of the nature of the evidence it deals with.
Officials described the approach as a practical one that weighs a
mix of often-sensitive factors.
"Much thought goes into how and why various tools are used in these
often complicated cases," Tasia Scolinos, a Justice Department
spokeswoman, said on Friday. "The important thing is for someone not
to come away thinking this whole process is arbitrary, which it is
not."
Among the factors the government considers, Ms. Scolinos said, are
"national security interests, the need to gather intelligence and
the best and quickest way to obtain it, the concern about protecting
intelligence sources and methods and ongoing information gathering,
the ability to use information as evidence in a criminal proceeding,
the circumstances of the manner in which the individual was
detained, the applicable criminal charges, and classified-evidence
issues."
Lawyers for people in terrorism investigations say a list of factors
to be considered cannot substitute for bright-line standards
announced in advance.
The courts have given the executive branch substantial but not total
deference, often holding that the president has the authority to
designate enemy combatants but allowing those detained to challenge
the factual basis for the administration's determinations. Some
courts have suggested that a detainee's citizenship, the place he
was captured and whether he was fighting American troops should play
a role in how aggressively the courts review enemy-combatant
designations.
A look at the half-dozen most prominent terrorism detentions and
prosecutions does little to illuminate the standards that have
informed the government's decisions.
One American captured on the battlefield in Afghanistan was held in
the United States as an enemy combatant. Another was prosecuted as a
criminal. One foreigner seized in the United States as a suspected
terrorist is being held as an enemy combatant without charges in a
Navy brig in Charleston, S.C. Others have been prosecuted for their
crimes.
In three high-profile terrorism cases, the government obtained
convictions in federal court. Zacarias Moussaoui, a French citizen,
pleaded guilty to taking part in the conspiracy that led to the
Sept. 11 attacks and faces the death penalty. Richard C. Reid, who
is British, pleaded guilty to trying to blow up an airliner over the
Atlantic with bombs in his shoes and is serving a life term. And
John Walker Lindh, the California man who pleaded guilty to aiding
the Taliban, is serving 20 years.
In three other cases, the administration designated terrorism
suspects as enemy combatants who may be detained by the military
indefinitely without charge. One, Yaser Esam Hamdi, an American
citizen of Saudi descent, was released and sent to Saudi Arabia
after the Supreme Court gave him the right to contest the
government's claims. A second American, Mr. Padilla, was transferred
to the custody of the Justice Department last week.
The only remaining enemy combatant known to be detained in the
United States, Ali Saleh Kahlah al-Marri, traveled the same road as
Mr. Padilla, but in the opposite direction. "Al-Marri is precisely
the flipside of Padilla," said Lawrence S. Lustberg, one of Mr.
Marri's lawyers.
After 16 months of criminal proceedings on fraud charges, and less
than a month before Mr. Marri's trial was to start in July 2003,
President Bush designated him an enemy combatant. Mr. Marri, a
Qatari who had been working on a master's degree at Bradley
University in Peoria, Ill., was immediately transferred into
military custody and moved to the Navy brig in Charleston.
John Yoo, a former Justice Department official who is now a law
professor at the University of California, Berkeley, said two issues
tended to determine how the government proceeded.
"The main factors that will determine how you will be charged," Mr.
Yoo said, "are, one, how strong your link to Al Qaeda is and, two,
whether you have any actionable intelligence that will prevent an
attack on the United States."
Jonathan M. Freiman, one of Mr. Padilla's lawyers, questioned that,
saying the administration's decisions had often seemed to be
reactions to actual and anticipated court decisions.
"The government continues to be more focused on protecting its
strategies than allowing them to be subjected to legal review," Mr.
Freiman said.
In the indictment unsealed Tuesday, Mr. Padilla was not charged with
some of the most serious accusations against him, including plotting
to explode a radioactive device, because the evidence needed to
prove the case had been obtained through harsh questioning of two
senior members of Al Qaeda, current and former government officials
have said. The statements might not have been admissible in court
and could have exposed classified information, the officials said.
The Moussaoui case was also complicated by his lawyers' demands that
they be given access to potentially exculpatory evidence that the
government said had to be kept secret for reasons of national
security.
The mere possibility of being named an enemy combatant, coupled with
the difficulty of divining the standards the administration uses in
choosing whom to call one, can affect the decisions of defendants in
criminal plea negotiations.
"In the case of John Walker Lindh," said his lawyer, James J.
Brosnahan, "there was a suggestion that even if we got an acquittal
that he could be declared an unlawful combatant, that he could be a
Padilla."
Indeed, the plea agreement Mr. Lindh signed contains an unusual
provision. "For the rest of the defendant's natural life," it says,
"should the government determine that the defendant has engaged in"
one of more than a score of crimes of terrorism, "the United States
may immediately invoke any right it has at that time to capture and
detain the defendant as an unlawful enemy combatant."
Mr. Freiman said he, too, had been told that the government reserved
the right to detain Mr. Padilla again should he be acquitted.
Arguably, it may sometimes be preferable for a defendant to be held
as an enemy combatant rather than being prosecuted. Mr. Lindh's
case, for instance, is at least superficially similar to that of Mr.
Hamdi, another American captured in Afghanistan. But Mr. Hamdi is
free after three years of confinement, though he had to relinquish
his American citizenship. Mr. Lindh is in the early part of his
20-year sentence.
The government has not offered an explanation for the disparate
treatment of the cases.
Mr. Marri's detention, on the other hand, is potentially lifelong.
Though he has not been convicted of a crime, said Jonathan Hafetz,
one of his lawyers, the conditions in the Charleston brig are as bad
or worse than those in the toughest high-security prisons.
"He has been in solitary confinement for two and a half years," Mr.
Hafetz said of Mr. Marri. "He hasn't spoken to or seen his wife and
five children since he was designated an enemy combatant" in June
2003. "There's no news, no books, nothing."
This year, the same South Carolina federal judge heard challenges
from Mr. Padilla and Mr. Marri. In July, the judge, Henry F. Floyd,
ruled that the administration was authorized to detain Mr. Marri.
Four months earlier, the judge had reached the opposite conclusion
in Mr. Padilla's case.
The difference, he said, was that Mr. Padilla was an American
citizen.
The United States Court of Appeals for the Fourth Circuit, in
Richmond, Va., reversed the ruling in the Padilla case. The
administration's decision last week to charge Mr. Padilla and try to
moot his appeal of the Fourth Circuit's decision to the Supreme
Court may have been driven by its desire to maintain a helpful
precedent in the circuit where it brings many of its terrorism
cases.
"They are seeking to keep their options open," said David D. Cole, a
law professor at Georgetown, "by avoiding Supreme Court review in
the Padilla case. It lets them keep standing the Fourth Circuit
decision."
In Mr. Hamdi's Supreme Court case last year, the four justices who
joined Justice Sandra Day O'Connor's controlling opinion used a
narrow definition of "enemy combatant," saying, at least for
purposes of that case, that it meant someone "carrying a weapon
against American troops on a foreign battlefield."
The government has proposed a much broader definition.
"The term 'enemy combatant,' " according to a Defense Department
order last year, includes anyone "part of or supporting Taliban or
Al Qaeda forces or associated forces."
In a hearing in December in a case brought by detainees imprisoned
in the naval facility in Guantánamo Bay, Cuba, a judge questioned a
Justice Department official about the limits of that definition. The
official, Brian D. Boyle, said the hostilities in question were
global and might continue for generations.
The judge, Joyce Hens Green of the Federal District Court in
Washington, asked a series of hypothetical questions about who might
be detained as an enemy combatant under the government's definition.
What about "a little old lady in Switzerland who writes checks to
what she thinks is a charitable organization that helps orphans in
Afghanistan but really is a front to finance Al Qaeda activities?"
she asked.
And what about a resident of Dublin "who teaches English to the son
of a person the C.I.A. knows to be a member of Al Qaeda?"
And "what about a Wall Street Journal reporter, working in
Afghanistan, who knows the exact location of Osama bin Laden but
does not reveal it to the United States government in order to
protect her source?"
Mr. Boyle said the military had the power to detain all three people
as enemy combatants.
In January, Judge Green allowed the detainees' court challenges to
their confinement to proceed. Another judge on her court reached the
opposite conclusion, and an appeal from the two decisions is
pending.
Copyright 2005 The New York Times Compan
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