A YEAR OF RAPID CONSTITUTIONAL EVOLUTION:
The Only Plausible Explanation For The Bush Administration's Mix-and-match Legal Tactics Is A Highly Disturbing One

By JAKE KREILKAMP

Monday, Sep. 09, 2002

Just as evolution and climatic change can take place in fits and starts, so too can a constitutional system that has long been stable change dramatically in a very short period of time. Over the year that has passed since the September 11 attacks, the glacial pace of constitutional change has threatened to become an avalanche.

For better or worse, the decisions and actions of a small group of individuals in the White House, the Justice Department, and the federal judiciary are working vast, and probably long-lasting, changes in our system of government and rights. They are changes that to our children's children, may appear set in stone, but that for us are still fluid: mutable and reversible.

Over the year, these individuals' actions have challenged many of our most basic assumptions about the laws of war, the functioning of our criminal justice system, and even our fundamental rights. This is not necessarily bad news: it is possible that the attacks could end up, in retrospect, having been a catalyst for positive, even overdue, legal change. (For instance, much-needed changes to the wiretap laws to account for cellphone communications were passed in the wake of the attacks.)

Yet there is a very troubling aspect of this campaign against terrorism: it has been entirely inconsistent. Military tactics may change over time to take account of circumstances, but legal principles must stand the test of time, if we are to be continue to live under the rule of law and justify our actions to ourselves, and to the world.

The Bush Administration's mix-and-match tactics for dealing with individuals suspected of links to al Qaeda clearly illustrate the problem.

Controversial Military Commissions Are Created, But Not Used

First, recall that in the early days after the attacks, President Bush announced that he would try suspected terrorists - both those captured in Afghanistan, and also, apparently, on American soil - in special military commissions. And these commissions would not offer the accused many of the basic due process protections of our civilian courts.

Perhaps as a result, the commissions have not yet been used in any of the series of high profile cases of terrorism suspects that have occupied the news over the past year, and especially the last few months.

The Lindh and Moussaoui Indictments At First Seem to Be Positive Developments

The Administration thus, for a while, seemed laudably responsive to domestic and international concerns about the commissions. The Justice Department chose to indict citizen John Walker Lindh, the "American Taliban," in federal court - even though, since he was arrested on foreign soil allegedly fighting for the enemy, and had al Qaeda connections, it might have taken a very different route. It also declined to seek a death sentence for Lindh, agreeing to a more reasonable plea bargain instead.

Indeed, it even chose to indict, and try, Zacarias Moussaoui, the alleged "twentieth hijacker" - even though Moussaoui was not a citizen. Efforts were made to appoint counsel for Moussaoui, though he rejected them, insisting instead on representing himself (with aid still offered from court-appointed attorneys if he chooses to consult with them).

Many welcomed the indictments as proof that the Administration was not succumbing to wartime paranoia. Instead of abandoning the carefully-developed structure of our criminal justice system, they were embracing it, and demonstrating that it was perfectly adequate to confront this new and daunting challenge. Forswearing a death sentence for Lindh gained us points with some of our allies; offering counsel to Moussaoui communicated the message that America really believed in justice for all.

The Hamdi Case Destroys Any Claim Of A Principled Legal Strategy

But not so fast. The Administration then discovered another American Taliban, Yaser Hamdi, in one of Halliburton's pods in Guantanamo Bay. The logical response would seem to be that Hamdi should be treated just as Lindh had been: as a citizen captured abroad, he should be indicted and, if no plea could be reached, tried in federal court with all the due process protections, including the right to counsel.

Especially since Hamdi was of Arab descent, and Lindh was not, certainly Hamdi should be treated just as Lindh had been, to show that Arab-Americans are in no way second-class. After all, Lindh had trained at Al qaeda camps, where he met bin Laden; certainly his could not be dismissed as a minor case.

Yet the Administration took a radically different tack with Hamdi. It declared Hamdi an "unlawful combatant," transferred him to a military brig in Norfolk, Virginia, and placed him in detention with no access to a lawyer. Most incredibly, the Administration continues to maintain the position that it need not even justify this determination to a judge.

Padilla's Treatment Is Even More Disturbing Than Hamdi's

Next came Chicagoan Jose Padilla. An American citizen detained on American soil, he had an even stronger argument for due process, and a federal court trial, than did any of the previous suspects: Moussaoui, a foreign citizen detained here; and Lindh and Hamdi, American citizens detained abroad. So of course, he was given a federal court trial, right?

Wrong. The government announced that Padilla was an "unlawful combatant," because he was allegedly plotting with al Qaeda members to detonate a radioactive device in a U.S. city. Perhaps, then, the government thought the seriousness of the crime alleged justified suspension of due process? But if so, why did it try admitted al Qaeda member Moussaoui, risking his acquittal and release? Was there reason to think Moussaoui would not do anything he could to bring nuclear devices to the U.S.? It is hard to see why.

Granted, even upon Moussaoui's acquittal, the Administration could try to detain him indefinitely, or at least convince his homeland, France, to do so. But the same could be said of Padilla. Again, there seems to be no argument at all for not giving Padilla a federal court trial. (There may be some national security argument, such as the government's need to chase down co-conspirators, but if so, the government has not made it yet.) And the government's lack of explanations about Padilla makes it very difficult to evaluate the substance of its claims against him.

Calling Padilla an "unlawful combatant" is absurd. If the Administration is right in its charges, he may have committed treason - a capital crime. But it is hard to see him as a maverick soldier for a foreign army.

Reasonable arguments have been put forth as to why al Qaeda members are probably "unlawful combatants" under international law - mavericks without the traditional indicia of an army. And good-faith disagreement is possible as to whether Taliban members - who seem more like regular soldiers - are lawful or unlawful combatants: Are they more like al Qaeda, or more like the Germans in World War II?

A larger question is whether even undisputed al Qaeda members really deserve no legal protections at all, which is evidently what being an "unlawful combatant" gets you.

But Padilla is no soldier, not even a maverick one. He is a U.S. citizen arrested on American soil, alleged to have been conspiring with foreigners. There is absolutely no principled reason why he, of all people, deserves to be removed from the ambit of our Constitution and all of its protections. Unless, of course, "wartime conditions" grants our Executive the power to do this to anybody he wants, without offering any explanation, or even going through the formality of suspending habeas corpus.

Remember the Rosenbergs, executed for allegedly aiding the Soviet Union. Are the allegations against Padilla really so different?

Puzzled and Horrified Observers Ask: What's Going On?

So, what's happening? Why does it seem that the Bush Administration is flipping a coin when it decides whether a given detainee is an "unlawful combatant" who does not even deserve a lawyer, or an individual entitled to full due process rights?

Many observers have concluded that the Bush Administration is now regretting its early forays into the courts. But why?

Lindh seems, on balance, a victory: The Administration got a very favorable guilty plea from Lindh, made points with allies, and faced little criticism that it should have been harsher. Also, that distracting case, with the plea agreement, disappeared from the national stage and the nation was able to move past its fascination with the "American Taliban" - and the embarrassing fact that a U.S. citizen had actually joined up with bin Laden.

Moussaoui, however, might be construed as at least a semi-defeat. The evidence against Moussaoui appears to be strong, and a conviction is virtually certain. But he is trying to use the court as a forum for his views, and threatens, at least, to turn it into a circus. (That's not the judge's fault; any defendant who represents himself can have that effect, and Moussaoui is inconsistent and cantankerous.) And now some reports claim that the French believe Moussaoui had little, if anything, to do with September 11, and instead was planning a different series of attacks.

Certainly it would be easier for the Administration if the Moussaoui case would just go away - and if Moussaoui were being held, like Hamdi and Padilla, essentially incommunicado. But the possibility that Moussaoui's trial would give him a podium must have been considered beforehand. And Moussaoui's case alone hardly justifies the treatment of American citizens Hamdi and Padilla: It is not as if he has been acquitted, or even as if there is any real risk he might be.

In sum, the explanation that the Administration was "once burned, twice shy" didn't seem to make sense either. But maybe, one might think, the Administration had just decided to deal with suspects out of court altogether, unless a federal court hearing a habeas corpus petition someday forced them to do otherwise.

This approach might seem to conflict with some pretty basic American values, but at least it's coherent: in times of crisis, the Executive branch is always tempted to push the limits of its authority, to see just how much it can get away with. Lincoln did it; Wilson did it; Roosevelt did it.

That explanation, though, didn't hold water either. Two weeks ago, the pendulum swung once again. The Attorney General chose to indict in federal court the members of an alleged al Qaeda sleeper cell in Detroit, as well as another alleged Qaeda abettor, James Ujaama, in Seattle. The sleeper cell defendants include foreign citizens; Ujaama is a U.S. citizen.

How can we possibly make sense of this mish-mash of treatments? Almost every possible variation of combinations of facts has been explored - with completely inconsistent results. We have seen both American and foreign suspects; their arrests have occurred both here at home and in the battle arena of Afghanistan. Their treatment has had neither rhyme nor reason.

It would have been consistent for the Administration to take a somewhat rights-protective approach: Try all the U.S. citizens - Lindh, Padilla, Hamdi, and Ujaama - and send the foreigners - Moussaoui, the foreign sleeper cell defendants, and the remaining Guantanamo detainees - to brigs.

That approach might have satisfied many citizens - especially those who worry that without a clear line between the treatment of citizens and aliens, their own rights may be in jeopardy.

It would also have been consistent, though the legality of it would have been debatable, for the Administration to take a dramatically hard-line approach: call anybody detained as part of a terror investigation an "unlawful combatant," and offer no protections whatsoever.

Plenty of people have argued for the necessity of taking exactly this type of approach. They argue that with the new threat of terrorism, even allegations relating to attacks - especially Weapons of Mass Destruction attacks like the one Padilla is alleged to have collaborated in planning - justify military court treatment and suspension of due process rights.

What is important to note, though, is whether one falls into the "try all the citizens" camp, or the "alleged terrorists deserve no due process" camp, or any of a number of other potential camps, none is the Administration's approach. It is hewing to no ideological or legal baseline.

Rather, it is exhibiting case-by-case discretion that, based on the information it has provided, seems to defy explanation. That approach should disturb all who believe in our Constitutional system, no matter where on the ideological spectrum they fall.

But there must be some unspoken explanation for Administration's approach: What can it be?

A Disturbing Explanation For Why the Administration Does and Does Not Indict

Ironically, those who can easily be convicted are offered full due process. But those against whom the evidence is slight are detained forever. Imagine if our domestic legal system usually worked that way: A prosecutor who couldn't make his case against you could simply put you in a cell and throw away the key. All the prosecutions the public could see would be successful, and the system would be applauded. Only those in secret detention, cut off from their lawyers and even their families, would know the truth.

We've heard more than we needed to from Moussaoui. Those we need to hear from are Hamdi and Padilla - the very citizens who are detained incommunicado. Moussaoui could probably write a New York Times OpEd if he so chose. But these citizens cannot be heard.

And if you are sure they are guilty, think again - consider Joanne Mariner's column about Abdallah Higazy. Higazy is another terrorism suspect who, as Mariner explains, seemed guilty, offered a false confession because he thought it would save his family, and was cleared only when the real owner of a flight radio claimed to be Higazy's came forward.

A Lawless Approach

The Administration's is a lawless approach. Indeed, it is worse than lawless: those who are least deserving of conviction, based on the evidence, are punished as if they have already been convicted, while those most deserving of conviction are at least afforded their day in court. Only the most plainly guilty receive the benefit of the presumption of innocence, and the chance to mount a counsel-assisted defense.

Must we proceed this way? Is this the only workable approach? Maybe. But it is very sad if it is, because it means that in one sense, the 9/11 hijackers were right: Our system of laws can't be very valuable or important if all it takes is one strong shock for us to scrap it.


Jake Kreilkamp is a third-year student at New York University Law School. He previously worked, for PEN American Center, on freedom of expression campaigns for harrassed and detained writers around the world.

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