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
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
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
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