- The Washington Times - Tuesday, December 10, 2002

Wartime strains constitutional customs.The high stakes for national self-preservation and public safety wrench customary procedural protections for enemy suspects. The consequences of letting an illegal combatant loose because the incriminating evidence falls below ordinary criminal thresholds are frightening: a potential second edition of the September 11 abominations. On the other hand, the president should surmount some evidentiary hurdle before an independent federal judge tending to verify that a claimed illegal combatant is the genuine article. Otherwise, any citizen disagreeable to the commander in chief could be swept off the street and detained indefinitely, earmarks of a police state.

The constitutional balance rightly tips in favor of thwarting enemy terrorism against civilian targets despite the heightened risk of an ill-founded detention. That does not jar constitutional foundations. In criminal cases in civilian courts, the multiple procedural safeguards enjoyed by the accused, including proof beyond a reasonable doubt and unanimous jury verdicts, chronically trips on the truth, most recently in the case of five wrongly convicted teenagers in the rape and beating of the Central Park jogger.

A much lower level of confidence in illegal combatant designations by the president is justified because a false negative verdict would risk national calamity, not simply criminal recidivism, as with the O.J. Simpson murder trial travesty.

The narrow, prudent, and impeccable decision by United States District Judge for the Southern District of New York, Michael B. Mukasey, in Jose Padilla vs. Bush (Dec. 4, 2002) sets a standard to which the wise and honest jurist should repair. Judge Mukasey held that Padilla's detention as an illegal combatant would be sustained if the government submitted "some evidence" to confirm that status; and, that an attorney would be permitted to assist Padilla in disputing the government's evidence, subject to government monitoring to insure against any national security mischief that might be occasioned by the consultation.

Padilla, an American citizen, was initially arrested on May 8, 2002, in Chicago, on a material witness warrant aiming to secure his testimony before a federal grand jury investigating the September 11 horrors. He was subsequently detained as an illegal combatant fighting on behalf of al Qaeda under a June 9 Order of President George W. Bush. The president acted both under the aegis of his constitutional powers as commander in chief and a Joint Resolution of Congress authorizing him to employ all necessary force against any nation or terrorist organization implicated in the September 11 war crimes.

Padilla has been held incommunicado for twofold reasons: to prevent his return to the ranks of al Qaeda to attack the United States; and, to elicit intelligence helpful to foiling terrorist plots that might halt if an outsider advised noncooperation. His former attorney in the material witness proceeding, Donna R. Newman, filed a habeas corpus petition on Padilla's behalf challenging the constitutionality of his detention.

The government responded with President Bush's findings regarding Padilla, a redacted version of facts in a declaration of Defense Department employee Michael H. Mobbs, and an unredacted version submitted by Mr. Mobbs under seal. In the June 9 Order, the president found that Padilla is "closely associated with al Qaeda," engaged in "hostile and warlike acts" including "preparation for acts of international terrorism" directed at America, holds information that would assist in thwarting al Qaeda attacks, and represents "a continuing, present and grave danger to the national security of the United States."

The redacted Mobbs declaration amplifies that after amassing a criminal history in his youth, Padilla moved to Egypt, took the name of Abdullah al Muhajir, and traveled to Saudi Arabia and Afghanistan. During a 2001 stay in Afghanistan, Padilla approached a senior bin Laden lieutenant, Abu Zubaydah, and proposed stealing radioactive material within the United States to build and detonate a "radiological dispersal device" there. Further, Padilla conducted research to execute his villainy at an al Qaeda safehouse in Lahore, Pakistan; and, discussed an extensive array of terrorist acts in the United States with al Qaeda officials he met in Pakistan at the direction of Abu Zubadah.

Judge Mukasey correctly endorsed President Bush's authority to designate an American citizen captured on American soil an enemy combatant and to detain the designee for the duration of the armed conflict with al Qaeda. A congressional declaration of war is superfluous to the president's duty to protect the nation from organized acts of destruction celebrated and exhorted daily by bin Laden and his satanic apostles of hate. The Constitution is not a suicide pact. Additionally, a citizen fighting for the enemy is no less a danger than an alien; Benedict Arnold was no less menacing in the Revolutionary War than Gen. John Burgoyne.

Moreover, the Joint Resolution and parallel actions of Congress, such as enactment of the Homeland Security legislation discredit any allegation that President Bush's measures in the war against global terrorism stumbles on congressional disapproval. Indeed, what astonishes is the stunningly high bipartisan support for the president's war actions.

In addition, our continuing conflict with al Qaeda is incontestable. Thousands of American troops remain in Afghanistan and Pakistan to kill and capture the enemy. Al Qaeda's terrorism remains unextinguished, as shown by the recent horrors in Bali and Mombasa and regular incitements to kill Americans communicated through al Jazeera or otherwise.

Padilla may be detained for life, but life imprisonment casts no shadow on the constitutionality of President Bush's June 9 Order. The Supreme Court sustained death sentences for American citizens operating as illegal combatants in the United States in Ex parte Quirin (1942).

Federal habeas corpus statutes, Judge Mulkasey rightly concluded, entitle Padilla to present evidence confined to assailing the correctness of his designation. For that purpose alone, he may consult with counsel, subject to monitoring by the military to ensure against the passing of secrets or the discouragement of Padilla from providing intelligence. Further, Padilla's detention will not be disturbed if the court finds "some evidence" he was "engaged in a mission against the United States on behalf of an enemy with whom the United States is at war."

Judge Mulkasey struck the right balance between winning war and handcuffing executive despotism. But Congress should enshrine the balance in statutes. Not all federal judges will be as longheaded or circumspect.

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