The Bush administration now has in custody in this country three U.S. citizens who are suspected of being members of Al Qaeda or sympathizers: John Walker Lindh, Jose Padilla (aka Abdullah al-Muhajir), and Yasser Esam Hamdi. Its handling of all three cases is troubling. This is not to say that the correct course is clear. These are difficult cases for which our legal system was not designed. And onrushing events keep exposing flaws in each newly minted proposal for how to guard against the unprecedented dangers we face without sacrificing our fundamental freedoms. So we grope ahead, by trial and error.
One lesson of our experience so far is that the best way to deal with suspected terrorists who are arrested in, or brought to, this country will often be neither conventional criminal prosecution (as in the Lindh case) nor unilateral military detention (as in the Padilla and Hamdi cases), but rather military detention checked by federal judicial review.
The Lindh prosecution looks more and more like the kind of hard case that could make bad law. Prosecutors are trying to bend the rules against use of coerced confessions enough to admit evidence obtained through harsh battlefield interrogation techniques. And they are straining to convict Lindh on a charge of conspiring to murder American soldiers in Afghanistan that is shaky at best.
As Lindh's defense attorneys detailed in motions this week to suppress his statements, he was successively interrogated under circumstances that seem more than a little bit coercive by several military personnel and an FBI agent during the 10 days beginning last December 1, when Northern Alliance troops handed him over to American forces. Traumatized, sleep-deprived, cold, hungry, drugged, and in pain from a bullet in his leg, Lindh was initially fearful he would be sent back to Northern Alliance forces to be tortured and killed. Later he was stripped naked, blindfolded, and duct-taped tightly for two days to a stretcher in a closed, unheated metal shipping container. He says he asked for a lawyer only to be told that none was available—even though his parents (unbeknownst to him) had retained a lawyer who was clamoring for access to him.
Lindh's attorneys argue cogently that using statements elicited under such circumstances to convict him would violate various Supreme Court precedents, including those that bar the use of coerced confessions and statements made without benefit of "Miranda warnings" or after the suspect had requested a lawyer. While the government disputes this argument, it seems likely that the courts would suppress Lindh's statements if this were an ordinary criminal case.
But this is not an ordinary criminal case. This is war. Wouldn't it be crazy to require our military forces to give kid-glove treatment to enemy combatants and terrorists? To recite Miranda warnings to enemies the moment they surrender? To cease all interrogation the moment they ask for lawyers?
Of course that would be crazy. The military and the government should have a very free hand (short of torture) to squeeze prisoners such as Lindh hard for any intelligence that might help prevent future attacks. But when the interrogators are trying less to prevent future attacks than to elicit incriminating statements, they should abide by the same rules that govern other criminal prosecutions. And the evidence suggests strongly that at least by the time the FBI interrogator grilled Lindh on December 9 and 10, the main objective was to set the stage for prosecution. While it might be unwise for courts to try to parse the motives of those who interrogated Lindh over a 10-day period, it would be an abdication of judicial responsibility to pretend that there was nothing coercive about any of these interrogations.
The Lindh prosecution thus presents the courts with two unattractive alternatives. To allow his statements into evidence would do violence to long-settled constitutional rules. But to exclude those statements might make it harder for the government to wring information about planned terrorist attacks out of other detainees.
In theory, the courts could bar the admission of evidence obtained through coercive interrogation without casting doubt on the constitutionality of using such techniques to seek information about planned terrorist attacks. But some of the Supreme Court precedents that bar use of coerced confessions in criminal trials have suggested (wrongly, in my view) that coercive interrogation is itself unconstitutional, no matter what the purpose. The justices have agreed to revisit that issue in a case to be argued this autumn, Chavez v. Martinez. But at this juncture, the government's effort to use arguably coerced admissions in the Lindh prosecution could backfire by provoking a decision condemning all coercive interrogation of suspected enemy combatants.
The other major problem with the Lindh prosecution is that the government's most serious charge—that he conspired to murder American soldiers in Afghanistan—is based on evidence that is at best weak and will be almost nonexistent if the courts suppress Lindh's supposedly incriminating admissions.
"At present we have no knowledge that he did anything otherl [sic] than join the Talban [sic]," one Justice Department lawyer e-mailed another on December 10. Prosecutors maintain that the FBI interrogation of December 9 and 10 yielded a confession from Lindh that he had deliberately enlisted in Al Qaeda's jihad against America. But the government's version of these interrogations—which the FBI neither taped nor got Lindh to sign—is disputed. Lindh's attorneys argue that the government's own notes show Lindh saying at one point that he had been fighting only for the Taliban, not Al Qaeda, and would have stopped doing that if it were possible after learning of the September 11 attacks.
Whom did Lindh conspire to kill? Were all Taliban troops who failed to lay down their arms when the American bombing started guilty of conspiring to murder Americans? How about Afghan draftees and other villagers who thought they were defending their country? Was Lindh more guilty than they because he was a traitor? If so, why wasn't he charged with treason? Would a Muslim cleric in Detroit be guilty of murder conspiracy if he expressed sympathy for Osama bin Laden? How about an anti-abortion activist who issued a vaguely menacing call for divine retribution against abortion doctors?
The government has provided no convincing answers to these questions. The murder conspiracy charge against Lindh thus risks either an embarrassing acquittal or a conviction that would stretch the law of conspiracy to questionable extremes. The evidence on the lesser charge of providing material assistance to a terrorist group (Al Qaeda) is stronger. But a conviction on that charge alone would be an embarrassment.
None of this is to suggest that Lindh should be released. Prosecuting him is not the only alternative to releasing him, as the president has demonstrated by ordering Hamdi and Padilla detained by the military, without criminal charges, as "enemy combatants." A long line of precedents support the president's power to do this during wartime. And even liberal Laurence Tribe, a Harvard Law School professor, has written (in a New York Times op-ed) that "releasing captured soldiers who belong to an enemy force committed to the murder of American civilians [would be] suicidal," and that "detention by military authorities may indeed be constitutional."
Detailed legal rules for such detentions do not yet exist. The administration—or someone—should write them. The rules should require neither evidence that the suspected enemy combatant has committed a crime nor proof beyond a reasonable doubt that he is dangerous. Rather, the government should be required to produce evidence establishing with reasonable clarity that a detainee is in fact a member of Al Qaeda or another international terrorist group. It should be able to rely on any and all reasonably reliable evidence, whether or not it would be admissible in a criminal trial, and to present sensitive evidence in secret proceedings.
The problem with the administration's handling of the Padilla and Hamdi cases is not its resort to military detention, but rather its refusal to acknowledge any obligation to produce any evidence at all linking them to Al Qaeda. So far, the message to the courts seems to be: "You can't give these people access to lawyers, because it might interfere with our interrogations. Lawyers could do nothing for them anyway, because they have no rights. You judges have no power to second-guess the president's findings. We will decide how to define 'enemy combatant,' and who fits our definition. And we don't make mistakes."
This won't do. Not in America. The war against terrorism must not become a war against due process of law. If the president and his people can't figure that out for themselves, Congress and the courts will have to explain it to them.