More than any other War on Terror detainee, José Padilla has illuminated the divide between Americans primarily concerned about the jihadist threat and Americans primarily concerned about the protection of civil liberties. Both sides are claiming victory in the wake of Padilla’s convictions last week by a federal jury in Florida. Both sides, however, may be drawing the wrong lessons.
Padilla (a.k.a. Abdullah al-Muhajir) is the Brooklyn-born American citizen who converted to Islam, became radicalized, trained in a paramilitary camp in Afghanistan, and was arrested in 2002 as he got off an airplane in Chicago. He had been dispatched by al Qaeda’s top leaders, according to the Justice Department, to carry out attacks against the United States — either gas explosions in a series of high-rise buildings or a “dirty bomb” (uranium wrapped in explosives).
He was initially held in the criminal-justice system as a “material witness.” No doubt the government wanted to ask him questions, but the more important objective was simply to detain him. But he could not be held for long: Unlike Israel, Britain, and other nations with long experience combating terrorism, the United States does not permit preventive detention. Not all of the government’s intelligence about Padilla could be admitted in court. And, since he is an American, deporting him was not an option. The government thus had reliable enough information to know he was a threat, insufficient evidence to prosecute him, and an obligation not to let him carry out his attacks.
Faced with this no-win situation, President Bush designated Padilla an enemy combatant in September 2002. His decision provoked caterwauling that Americans were about to be rounded up by the busload and held without trial. Yet Padilla is one of only two Americans detained as an enemy combatant in nearly six years of war. (Yasser Hamdi — the other — was captured on the battlefield overseas, and the Supreme Court upheld his detention. Another American, John Walker Lindh, was also captured on a battlefield overseas, but was prosecuted in the criminal-justice system.)
The justification of Padilla’s detention was certainly more complicated than that of Hamdi’s: Padilla was captured inside the United States while (at least ostensibly) not in the process of carrying out an attack. The Supreme Court ducked these issues on technical grounds in 2004. Then the Gonzales Justice Department — to the great annoyance of the Fourth Circuit U.S. Court of Appeals, which had upheld Padilla’s detention — avoided Supreme Court review again in 2005, by suddenly shifting gears and consigning Padilla to the criminal-justice system.
Padilla and two codefendants, Amin Hassoun and Kifah Wael Jayyousi, were finally convicted for conspiring to murder, kidnap, and maim individuals in a foreign country, and for providing material support to terrorists. The Justice Department demonstrated that they were part of an American jihadist cell that sent money, resources, and recruits to jihadists overseas. These are serious crimes indeed. Yet they are less so than the crimes Padilla planned and failed to execute (that is, the attacks on targets inside the U.S.).
Some civil libertarians like to hold Padilla up as proof that the civilian criminal-justice system works, and is the obvious solution for Guantanamo Bay detainees. But Padilla’s case suggests just the opposite — because the government could not prosecute him for his most serious offenses. As with many of the Gitmo detainees, the information that best demonstrated the gravity of his threat came from intelligence that was unusable in court, and from a confession that was inadmissible because Padilla had not been read his Miranda rights. Moreover, had Padilla been treated from the start as an ordinary criminal defendant, he may well have been released in 2002. That’s because the Speedy Trial Act requires defendants to be indicted within 30 days of arrest (10 if they are denied bail), and it is far from clear that the Justice Department could have assembled a provable case against him right after he stepped off the plane in 2002.
To understand more broadly why detention is important, consider Padilla’s case in the light of the two reasons for holding enemy combatants: to prevent them from rejoining the battle, and to gather intelligence. On the first count, Padilla’s detention prevented him from being released and going right back to attack planning. As for his intelligence value, he was trained by Mohammed Atef (a.k.a. Abu Hafs al Masri, al Qaeda’s top military commander until he was killed by U.S. forces in 2001) and Abu Zubaida; he was paired for training with Adnan Shukrijuma, perhaps the world’s most sought-after al Qaeda operative, who is believed to be plotting attacks against the U.S.; and he was personally dispatched on his mission by 9/11 mastermind Khalid Sheikh Mohammed. The lifesaving intelligence gleaned from his capture was not the sort one tends to get after Miranda warnings — and was more important than any single terrorist’s prosecution.
On the other hand, the guilty verdicts do not validate the administration’s handling of Padilla’s case. It was certainly justified in holding Padilla by any legal means. But by flitting from the civilian system to the military system and back to the civilian again, the administration appeared to be maneuvering based on calculations about how courts would respond rather than on a well-considered position regarding Padilla’s status. Much of this was excusable in the early aftermath of 9/11. Back then, we were still coming to grips with the fact that, although most acts of war are also statutory crimes, the civilian-justice system is not geared for prosecuting wars or preventing terrorist attacks. But the ongoing bobbing and weaving undermined public support for the worthy cause of detaining alien enemy combatants. And it needlessly antagonized the Fourth Circuit, where much of the legal action in the war takes place.
Six years down the road, the U.S. should be better prepared for another José Padilla. Instead, it continues failing to address the need for preventive detention with adequate due-process guarantees, and for more refined guidelines in determining who should be an enemy combatant and who a criminal defendant. We tend toward the view that the criminal-justice system should be the presumptive route when an American citizen is apprehended while plotting terror attacks on U.S. soil, so long as an attack has not yet been carried out. But, as the Padilla case illustrates, combatant designation — challengeable in the courts — must remain an option of last resort until we develop a system better suited to the perils of this war.