A National Need for Preventive Justice
by Victoria Toensing

Al Queda has declared jihad against all Americans and September 11 was the first attack.   It was not just a crime, nor even an act of war.  It was an illegal act of war, an unprovoked massacre of civilians in a non-combat zone. That a nation’s highest priority is to protect its citizens is incontrovertible.   Because preventing the next attack, not punishing the last, is our primary concern, the criminal law cannot be the sole legal vehicle for dealing with those who would destroy us.  Rather these threats must be viewed through a different, and to most Americans, a  “new” legal prism.   This prism for dealing with the issues of detainees and collection of evidence would not abandon our constitutional precepts but would consider as an important factor our priority of prevention.   

Because preventing the next attack - not punishing the last - is the country's primary concern, criminal law cannot be the sole legal vehicle for dealing with those who would destroy us.  Rather, these threats must be viewed through a different and, to most Americans, "new" legal prism.  This prism for dealing with the issues of detainees and collection of evidence would not abandon our constitutional precepts but would consider as an important factor our priority of prevention.

This approach is not new.  We used it during World War II when the courts upheld trial and execution by military commission and detaining until the end of the war an American citizen captured fighting with the enemy.   But the challenge today is different and greater than in the yore of the last declared conventional war.  Today, we have an enemy who threatens to destroy us by any means possible after invading our country to murder 3000 in an act that violated every rule of engagement.   Foiling that enemy’s plans must be a factor whenever the government has evidence of a person’s involvement in terror and is deciding issues such as whether to charge a detainee criminally and whether to keep secret information about detainees.

The reasons for detaining a combatant are age-old wartime measures:  take the warrior off the battlefield and obtain information about the enemy.  The criminal process thwarts the latter objective; a defendant can assert his Fifth Amendment right to remain silent, effectively shutting down intelligence gathering. The criminal law today, unlike the 1940s, requires the government to provide any evidence that could be helpful to the defendant’s defense.  So, in a bizarre legal twist, John Walker Lindh (the American Taliban) shut up and the government was ordered by the court to talk. 

The Defense Department (not Justice) learned this lesson and decided to classify as illegal combatants two U.S. citizens, Yaser Esam Hamdi and  Jose Padilla, and to detain them without criminal charges.   As such, they are not entitled to counsel.  There is no criminal charge to defend; they are being held as prisoners of war until the end of the conflict as countries have done ever since rules of war were written. 

Hamdi and Padilla pose different factual scenarios, which will probably produce two legal standards but the same result.  Hamdi, an accidental U.S. citizen by birth, was raised in Saudi Arabia.   He was captured fighting with the Taliban in Afghanistan.  The court, which is not a political branch, has a limited role in war.  Therefore, it cannot delve into the facts of every wartime detention.  At most, the judiciary should only ensure there is a fair executive branch process for determining the combatant was found fighting with the enemy.   

Padilla was not caught on the battlefield, but arrested based on evidence he was working with Al Queda to detonate a dirty bomb in an American city.  The Supreme Court will likely require some threshold factual standard to link a non-battlefield individual with the enemy--but not the criminal law standard of guilt beyond a reasonable doubt or even probable cause. Once that relationship is established, Padilla should be in no different status than Hamdi, an illegal enemy combatant to be detained until the end of the war or tried by military tribunal. 

The decision to make information public regarding certain detainees, including opening immigration hearings, must similarly be made in an attack prevention context.  Why would we want to reveal any information about who is in custody or the basis for their detention, which could expose sources and methods?  Those who want to kill us have information we may or may not possess.  By providing any additional facts, we give them pieces to complete an intelligence mosaic by which they can learn, for example, which detainee is cooperating or which cell has lost members and needs replacements.

Organizations suing for public disclosure claim they want to “investigate to see if the person is properly in custody.”  Even though I supervised terrorism investigations, as a private citizen today I could not conduct an investigation sufficient to make that determination because I do not have access to relevant investigative and classified information.  Neither will they.  Nor will the press.

Those opposing the government’s detentions also contend they are “secret arrests.”  In fact, each detention was made under color of law - actually three laws, depending on whether the detainee was indicted for criminal offenses, held as a material witness, or charged with an immigration violation.

All charged criminally are a matter of public record and have counsel at taxpayer expense, as do those held as material witnesses. Those charged with immigration violations have a right to counsel. Most have been deported  (over 400); only 63 remain in custody.

What is important for all these cases is that the courts are open. President Bush has not, during a war fought within our borders, suspended habeas corpus as President Lincoln did during the Civil War. Each of these issues will be decided by the Courts according to our Constitution, which does not mean according to our criminal law.