Enemy Americans

Jose Padilla and Yaser Esam Hamdi are American citizens. The Bush Administration has claimed the right to imprison them indefinitely without charge or trial, on the grounds that they are "enemy combatants" in the war on terror. Does a new kind of war require new kinds of laws?
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June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft's career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago's O'Hare International Airport, and Ashcroft happened to be in Moscow when the government decided to disclose the arrest. Unwilling to leave the announcement to anyone else, he breathlessly took to the airwaves to declare that the Administration had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." "Let me be clear," Ashcroft said. "We know from multiple independent and corroborating sources that Abdullah al-Muhajir was closely associated with al-Qaeda, and that as an al-Qaeda operative he was involved in planning future terrorist attacks on innocent American civilians in the United States."

Ashcroft's peculiar exercise in self-promotion backfired badly. For one thing, it infuriated the White House. Not only did the Attorney General seem to take credit for the arrest, but he rather overstated its drama. Any dirty-bomb plot—if that's what Padilla was indeed involved in—was far from "unfolding"; it had barely been hatched, as other officials hastened to clarify. Padilla, an American and a former gang member who had committed murder as a juvenile and had become a Muslim in prison, had returned to the United States from Pakistan in order to scout out possible targets for al-Qaeda attacks, according to the government. Detonating a dirty bomb was one of the possibilities he had researched in Pakistan, where he had allegedly spent time over a few years meeting and training with al-Qaeda operatives. But as Deputy Defense Secretary Paul Wolfowitz explained at a later news conference, "There was not an actual plan." The FBI stopped Padilla "in the initial planning stages."

Ashcroft's race to the microphone also helped attach his face to one of the most controversial security policies of the post-9/11 Bush Administration: its assertion that it may imprison indefinitely those it deems "enemy combatants" in the war on terror, even if they are American citizens. Ashcroft announced from Moscow not merely that the government had arrested Padilla but also that he and the Defense Department had "recommended that the President of the United States, in his capacity as commander in chief, determine that [Padilla] is an enemy combatant who poses a serious and continuing threat to the American people and our national security." As a result, Ashcroft stated, Padilla had been "transferred from the custody of the Justice Department to the custody of the Defense Department"—where he has remained ever since without charge or trial, and for much of the time without access to his lawyer.

By the end of this June the Supreme Court will rule on Padilla's case and that of Yaser Esam Hamdi, the only other American citizen currently in Pentagon custody as an enemy combatant—and also, separately, on the jurisdiction of U.S. courts over the cases of noncitizen combatants held at Guantánamo Bay. In doing so the justices will effectively make new law, defining to a great extent the scope of presidential powers, individual liberties, and judicial oversight in the war on terrorism. The justices will, in a very real sense, define whether the "war on terrorism" is a real war at all—that is, a conflict that triggers the full array of presidential powers, including the power to detain enemies—or simply a rhetorical device, like the war on drugs and the war on cancer. At oral arguments on April 28 the justices probed both sides with tough questions, expressing concerns about detention with so little oversight, about infringing on presidential war powers, and—in Padilla's case—about whether the Supreme Court has jurisdiction to decide the matter at all. The Court did not clearly tip its hand as to how it will rule.

If the "enemy combatant" cases of Padilla and Hamdi present a clash between liberty and security, each side champions one while giving short shrift to the other. The military wants to treat terrorism cases under the laws of war—indeed, under a particularly convenient reading of those laws from the Administration's point of view. Civil libertarians and defense lawyers insist on using the more rights-friendly criminal-justice system. In other words, although common rhetoric holds that the war on terrorism is a "different kind of war," neither side entirely accepts the implications of that observation. At the heart of the civil-libertarian position lies a partial denial that the current war is, legally speaking, real—or real enough to substantially broaden presidential powers. Meanwhile, the Pentagon balks at the suggestion that the war is different enough to require any heightened judicial review, legal accountability on the part of the executive, or procedural protections for those captured in "combat."

Between these extremes a few voices of moderation have struggled to be heard. Behind the scenes in Washington one of those voices belongs to the civil libertarians' bête noire, John Ashcroft. This is surprising, given Ashcroft's Moscow stunt—which, after all, played perfectly to his existing image. As one former senior Justice Department official ruefully summarized it, Ashcroft has come to represent the "hardened, religiously inspired zealot who is looking to take away everyone's civil liberties." He supervised the roundup of aliens after September 11 and zealously guarded the secrecy concerning their detention. He championed the Patriot Act. He promulgated regulations allowing the government to monitor lawyers' conversations with imprisoned clients suspected of active terrorist ties. The Attorney General's proud declaration—and the Justice Department's subsequent energetic defense—of the President's authority to hold an American citizen like Padilla in military custody seemed like just more of the same.

But in the debate over Padilla and Hamdi the Attorney General has proved a relative softy. In fact, holding American citizens as enemy combatants was less the Justice Department's preference than the Pentagon's, though one would not know this from the public posture of either agency. Defense Secretary Donald Rumsfeld scarcely mentions Padilla or Hamdi, leaving questions about the Administration's policy to Justice Department lawyers. Those lawyers are obliged to defend any government policy for which they can advance a reasonable argument. As the months of detention turned into years, however, close observers of the enemy-combatant cases began to see hints of a fissure between the Pentagon and the Justice Department. Ashcroft's aides grew increasingly frustrated as their boss took heat for the policy, and word began to leak out that the Attorney General and his staff were pushing to temper key aspects of it. Recent press reports have even disclosed that the deputy solicitor general, Paul Clement—the government's chief counsel on the cases, who has publicly argued the hard line before numerous courts—was internally urging a more moderate stance.

On the record, even former department officials are circumspect about this difference of opinion. Viet Dinh, who served as assistant attorney general for legal policy, coyly describes "a systemic and healthy tension between the Justice Department and other departments engaged in the war on terrorism—including the Department of Defense." He insists that although the Justice Department has a voice, "at the end of the day the decision" on enemy combatants "is made by the client agency and approved by the President." Speaking on condition of anonymity, sources are more explicit. The rumors of a rift within the Administration are "absolutely true," a former senior Justice Department official told me recently. "There are a lot of people who can't wait for the background documents to come out. History will view John Ashcroft very differently than his contemporary critics do." Ashcroft's position, this source emphasized, is not one that civil-liberties groups would find congenial, but neither is it the hard-line stance that Justice Department lawyers have taken in court. In particular, Ashcroft did not believe that Padilla and Hamdi should be denied meaningful access to counsel. The Justice lawyers "took that position because they're good team players and they know who the client is," the former official said. "But this is an incredibly difficult argument to make, and Ashcroft and [Solicitor General] Ted Olson and Clement are personally deeply uncomfortable with it."

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