Terrorism and the courts

Few issues better illustrate the differences between President Bush and John Kerry than their respective approaches to combating terrorism. Following the September 11 attacks, Mr. Bush jettisoned the Clinton method, which focused on trying terrorists in the courts, in favor of a military approach aimed at killing or capturing terrorists who target Americans. For his part, Mr. Kerry states that the Bush administration has “exaggerated” the threat and that he views terrorism as “primarily an intelligence and law enforcement operation.” The problem with Mr. Kerry’s approach is that requiring the government to present evidence sufficient to convict a terrorist in court could enable some very dangerous people to go free.

The Justice Department makes a compelling case that had it taken the approach favored by Mr. Kerry and the ACLU in the case of al Qaeda operative Jose Padilla, that is precisely what would have happened. As Deputy Attorney General James Comey explained on Tuesday, this would have, at a minimum, put hundreds of innocent lives in jeopardy.

Padilla, an American citizen and former Chicago gang member, plotted to build and detonate either a nuclear device or a dirty bomb in this country. But his al Qaeda handlers, including operations boss Khalid Shaikh Mohammed, told him to concentrate instead on a plan to blow up at least three high-rise apartment buildings using natural gas. When Padilla arrived at O’Hare International Airport in Chicago on May 8, 2002, he was arrested on a material witness warrant signed by a federal judge in New York. Padilla was first brought before a grand jury in New York, but refused to tell what he knew about al Qaeda terrorist activities. On June 9, 2002, with time running out on the grand jury process, Mr. Bush designated Padilla an enemy combatant and ordered that he be held by the Defense Department.

But little of the information about Padilla’s specific targets had been known to authorities at the time of his arrest. Most of it came as a result of interrogations of Padilla during his two years in custody. “Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right,” Mr. Comey said. “He would have likely ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope — pray, really — that we didn’t lose him.”

Mr. Comey’s cautionary tale reminds us of the limits of our ability to defend ourselves against terrorists by resorting to the federal courts. Mr. Kerry’s approach could well cripple this country’s ability to protect itself from future Jose Padillas.