- The Washington Times - Monday, December 22, 2003

Judges chronically need education in the obvious, for instance, the syllogism that the power to wage war includes the power to wage war successfully.

Heedless of the obvious, the U.S. 2nd Circuit Court of Appeals last Thursday in Padilla vs. Rumsfeld (Dec. 18, 2003), denied President George W. Bush was empowered to detain as prisoners of war illegal enemy combatants linked to al Qaeda and apprehended in the United States. A 2-1 panel majority composed of Rosemary S. Pooler and Barrington D. Parker obtusely disputed that American soil is a war zone for international terrorists; and, that indefinite detentions are ordinarily superior to criminal prosecutions of enemy combatants to avoid disclosing intelligence sources and methods and to extract intelligence necessary to thwart repetitions of September 11, 2001, or like abominations.

Judges Pooler and Parker summoned their proximity to the September 11 war crimes to defend their constitutional outlandishness: “As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation.” But the Padilla decision warred with their professed keen awareness.

On May 8, 2002, Jose Padilla, an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago’s O’Hare International Airport. He was initially held by the FBI as a material witness in connection with a grand jury investigation of September 11. Thereafter, President Bush designated Padilla an enemy combatant to be detained by the Defense Department. Judges Pooling and Parker conceded the government’s ample evidence of Padilla’s implication in a terrorist plot.

According to an unsealed declaration submitted by Michael H. Mobbs, Padilla had been convicted of murder and a handgun charge before moving to Egypt in 1998. He traveled in the Middle East and Southwest Asia between 1999 and 2000 in comradeship with known members and leaders of al Qaeda. During an Afghanistan sojourn, Padilla joined a plan to construct and detonate a radioactive bomb within the United States.

In Pakistan, he received explosives training from al Qaeda and instructions to return to the United States for reconnaissance or renewed al Qaeda terrorism. A sealed Mobbs declaration identified sources and objective circumstantial evidence corroborating the factual assertions in the unsealed document. President Bush’s designation further amplified Padilla had engaged in “warlike acts, including conduct in preparation for acts of international terrorism” against that United States; possessed intelligence that could assist the United States in frustrating future terrorism; and, posed a continuing threat to United States security.

In sum, Padilla might be likened to the Nazi saboteurs during World War II, including an American citizen, who were apprehended in the United States, tried by a military commission as “unlawful combatants,” and executed. The Supreme Court in ex parte Quirin (1942) sustained the constitutionality of President Franklin D. Roosevelt’s interdiction and execution of the saboteurs.

The court of appeals majority fatuously urged, in contrast to Quirin, that Padilla was taken into custody “outside a zone of combat.” As any sapient creature knows, the September 11 villainies in the United States are al Qaeda’s signature; and, it regularly incites jihads against United States civilians and soldiers anywhere on the planet. Sanctuaries from its international terrorism are chimerical. That explains the newly created Department of Homeland Security and the United States terrorist threat color codes.

The panel majority also stumbled in asserting Padilla’s criminal prosecution or holding as a material witness exhausted the government’s legitimate interests in detention. Eliciting counterterrorist intelligence through skillful interrogation of Padilla is more urgent, the same tactic employed to apprehend Saddam Hussein last week. The enemy combatant could provide a link in a chain of evidence leading to the capture of Osama bin Laden or Mullah Omar.

In addition, the intelligence costs of prosecuting Padilla would be prohibitive. Disclosing sources and methods in open court would be necessary to prove Padilla’s guilt of terrorist crimes beyond a reasonable doubt, including a defendant’s constitutional right to confront witnesses against him. These same concerns necessitated the nonprosecution of Theodore Hall, an atomic spy at Los Alamos, to avoid revealing to the Soviet Union that the United States had cracked a major communications code.

Judges Pooling and Parker enlisted as their decisional keystone a federal statute denying the president power to detain citizens “except pursuant to an Act of Congress.” In the aftermath of September 11, a Joint Resolution authorized the president to unleash “all necessary and appropriate force” against any nation, organization, or persons implicated in the terrorist attacks to thwart “any future acts of international terrorism against the United States.”

Padilla was acting in collaboration with al Qaeda; and, his detention and interrogation would help derail future al Qaeda terrorism. But reminiscent of a surprise O Henry ending, the two judges whimsically concluded the Joint Resolution intended to sanction killings of enemy combatants, but not their detentions as prisoners of war for counterterrorism intelligence or otherwise.

The Padilla ruling demonstrates the dangerousness to national security of judicial ignorance in action. Its reversal by the Supreme Court is foreordained.

Bruce Fein is a founding partner of Fein & Fein.

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