http://www.opinionjournal.com/extra/?id=110004499
Earth to Second Circuit
We're at war.
BY BRADFORD A. BERENSON
Thursday, January 1, 2004 12:01 a.m. EST
"How can the President of the United States detain a U.S. citizen on American soil and hold him without charge and without a lawyer, perhaps for years?" This is the question that apparently boggled the judicial mind in the Second Circuit's recent decision directing that Jose Padilla be turned loose by the U.S. military or surrendered to civilian prosecutors in the criminal justice system. Given the near certainty of further review by the full Second Circuit or the Supreme Court, the question remains important.
It also has an easy answer. The key fact is not that Jose Padilla is a U.S. citizen. It is that Padilla, a k a Abdullah al-Muhajir, was an al Qaeda agent who worked directly with terrorist mastermind Abu Zubaydah to plan a dirty-bomb attack on a major American city. He was captured in Chicago-O'Hare airport on his way back from Pakistan to scout potential targets. He was, in short, an active enemy fighter making war on the U.S. and its citizens, just as the 19 hijackers who attacked New York, Washington, and Pennsylvania were.
A person making war on the U.S. who seeks to slaughter thousands of our citizens in the streets of our cities must face our military, not our judges. Such a person, U.S. citizen or not, is not a common criminal. He is an avowed enemy of our system of laws and government and a mortal threat to our way of life. The powers implicated are not the president's law-enforcement powers but his war powers. Until the Second Circuit's ruling last month, it had never been thought that the president, in the exercise of his war powers, could not use force against such a person on American soil. Indeed, it would have come as a great surprise to both Abraham Lincoln and Franklin Roosevelt to learn that the president lacks the power to use the military to protect the nation from citizen enemy combatants as well as foreign ones.
The president's power as commander in chief to do what is necessary to protect the nation in time of war is, as it must be, exceptionally flexible and robust. He can engage and subdue the enemy in any way he sees fit. There is no judicial check on his authority in this vital and sensitive area because there cannot be: As the Framers expressly recognized in the Federalist Papers, the "decision, activity, secrecy, and dispatch" that are the hallmarks of unitary executive power are "essential to the protection of the community against foreign attacks."
Under the laws of war, the legitimate use of force has always included the power to capture and detain enemy combatants for the duration of the conflict, without charges and without lawyers, for the purpose of incapacitating them, gleaning actionable intelligence, and protecting the nation's security. This power is no less essential when applied to terrorists captured on our shores, even if they happen to be U.S. citizens. As the Supreme Court recognized more than 50 years ago in unanimously upholding President Roosevelt's capture on U.S. soil of a U.S. citizen Nazi saboteur, "citizens who associate themselves with the military arm of the enemy . . . and enter this country bent on hostile acts are enemy belligerents" and may be treated as such.
The real-world consequences of the recent ruling to the contrary could not be more dangerous or debilitating, especially in this war, in which our enemies are attempting to carry out attacks within the U.S. and conceal themselves among the civilian population in order to do so. Under the court's ruling, the only option for dealing with an American citizen engaged in terrorist activity on our soil, at least absent further legislation, is the civilian justice system.
In practical terms, this means that citizen terrorists may be entirely beyond the government's reach. Never mind the kinds of serious problems that have thus far impeded the successful criminal prosecution of Zacarias Moussaoui, in many cases, no traditional criminal case could be brought at all against an al Qaeda agent found in the U.S. At the point of apprehension, we may not know what a terrorist is planning, his plans may not yet have ripened into prosecutable crimes, or the evidence we have against him may be derived from intelligence sources that cannot meet the normal standards of admissibility in a criminal courtroom. If military detention is not an option, and, for one or more of these reasons, a suspected terrorist cannot be charged with a crime, he must be let go.
Equally alarming, even when a criminal case might be made, the government will be unable to successfully interrogate and gather intelligence from al Qaeda recruits among our citizens. The purpose of military detentions is incapacitation and prevention, not prosecution; to disrupt planned attacks and dismantle terrorist networks, it is vital that the military be able to interrogate enemy fighters on our soil and learn everything they know as quickly as possible. That cannot happen if, as the Second Circuit has ruled, these fighters must be arrested by civilian law enforcement, given Miranda warnings, provided with a lawyer, and charged with a crime or held as a material witness.
Granting immunity from military detention to American agents of al Qaeda captured in the U.S. is thus a potentially crippling disservice to the war effort. If left undisturbed, the Second Circuit ruling would leave exceptionally dangerous individuals in our communities and reduce our ability to prevent further attacks on U.S. soil. It also creates shockingly perverse incentives for al Qaeda to do precisely what we are most desperate to prevent: recruit U.S. citizens to carry out acts of terrorism here.
Despite its protestations to the contrary, the Second Circuit must have doubted whether we are really at war. At a minimum, it seriously misunderstood the war's essential character. The court repeatedly described American soil as distinct from a battlefield and said that Mr. Padilla was "outside a zone of combat" and was not "actively engaged in armed conflict against the United States" when he was apprehended in O'Hare airport. By that logic, neither were the 19 hijackers as they walked through Logan and Dulles Airports on the morning of Sept. 11, 2001. If 9/11 did not illustrate that nicely dressed al Qaeda in our airports are enemy fighters on the battlefields of this new war, what did it teach us?
Mr. Berenson, a Washington lawyer, was associate White House counsel to President Bush.
