No Checks and Balances for U.S. in Terror Cases

Adam Liptak in today's New York Times:

When Attorney General Alberto R. Gonzales announced last week that Jose Padilla would be transferred to the federal justice system from military detention, he said almost nothing about the standards the administration used in deciding whether to charge terrorism suspects like Mr. Padilla with crimes or to hold them in military facilities as enemy combatants.

"We take each individual, each case, case by case," Mr. Gonzales said.

The upshot of that approach, underscored by the decision in Mr. Padilla's case, is that no one outside the administration knows just how the determination is made whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility or to charge him in court.

Indeed, citing the need to combat terrorism, the administration has argued, with varying degrees of success, that judges should have essentially no role in reviewing its decisions. The change in Mr. Padilla's status, just days before the government's legal papers were due in his appeal to the Supreme Court, suggested to many legal observers that the administration wanted to keep the court out of the case.

"The position of the executive branch," said Eric M. Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner."

Here's the bottom line: There are no limits -- I'll repeat that: there are no limits -- on what the U.S. government can do in identifying, detaining, interrogating, charging, and disposing of terror cases. The government's decisions are unknown, secret, at every step of the process; they are not subject to judicial review; they are based on no consistent legal standards that the government must specify or by which the government must abide.

Relax, says the government. You can trust us not to abuse our limitless powers: We are the government.

The government says a secret and unilateral decision-making process is necessary because of the nature of the evidence it deals with. Officials described the approach as a practical one that weighs a mix of often-sensitive factors.

"Much thought goes into how and why various tools are used in these often complicated cases," Tasia Scolinos, a Justice Department spokeswoman, said on Friday. "The important thing is for someone not to come away thinking this whole process is arbitrary, which it is not."

But this same government declares that there is no bright line standard, or any standard at all, really, as to how the process works -- given that the Justice Department can designate anyone as an enemy combatant, no matter how strained the supposed connection to terrorist activity is.

"The term 'enemy combatant,' " according to a Defense Department order last year, includes anyone "part of or supporting Taliban or Al Qaeda forces or associated forces."

In a hearing in December in a case brought by detainees imprisoned in the naval facility in Guantánamo Bay, Cuba, a judge questioned a Justice Department official about the limits of that definition. The official, Brian D. Boyle, said the hostilities in question were global and might continue for generations.

The judge, Joyce Hens Green of the Federal District Court in Washington, asked a series of hypothetical questions about who might be detained as an enemy combatant under the government's definition.

What about "a little old lady in Switzerland who writes checks to what she thinks is a charitable organization that helps orphans in Afghanistan but really is a front to finance Al Qaeda activities?" she asked.

And what about a resident of Dublin "who teaches English to the son of a person the C.I.A. knows to be a member of Al Qaeda?"

And "what about a Wall Street Journal reporter, working in Afghanistan, who knows the exact location of Osama bin Laden but does not reveal it to the United States government in order to protect her source?"

Mr. Boyle said the military had the power to detain all three people as enemy combatants.

The government has the power to designate a suspected terrorist as a criminal, to be tried under the U.S. legal system, or as an enemy combatant, subject to no legal rights at all. It has the power to change designations at will: a detainee can go from ordinary criminal to enemy combatant or vice versa with no explanation required. The government can even arrest and detain people after they have been acquitted, on the same charges.

"In the case of John Walker Lindh," said his lawyer, James J. Brosnahan, "there was a suggestion that even if we got an acquittal that he could be declared an unlawful combatant, that he could be a Padilla."

Indeed, the plea agreement Mr. Lindh signed contains an unusual provision. "For the rest of the defendant's natural life," it says, "should the government determine that the defendant has engaged in" one of more than a score of crimes of terrorism, "the United States may immediately invoke any right it has at that time to capture and detain the defendant as an unlawful enemy combatant."

Mr. Freiman said he, too, had been told that the government reserved the right to detain Mr. Padilla again should he be acquitted.

The title of the NYT article is, "In Terror Cases, Administration Sets Own Rules." But the larger point here is that the definition of a terror case is fluid, too. In Pres. Bush's Justice Department, any case can be a terror case.