Different rules apply in wartime

July 09, 2002|By Steve Chapman

CHICAGO - Jose Padilla, a U.S. citizen arrested on suspicion of plotting with al-Qaida, never got to set off the "dirty bomb" he allegedly had in mind to kill some of his fellow Americans. But the ensuing repercussions have produced collateral damage of a sort, by knocking some people a bit loopy.

The Bush administration's critics are outraged that the government would pick someone up and hold him indefinitely, without charge or trial, simply because they think he has bad intentions. Isn't that the sort of thing that happens in dictatorships?

The American Civil Liberties Union said that if there is a case against him, the Justice Department should prosecute it in court. "The government has failed to justify why our traditional system of justice should not apply in the case of Jose Padilla," said ACLU Executive Director Anthony Romero.

He wants justification? How about that vast empty space at Ground Zero? The Sept. 11 attacks were a crime, but they were far worse than that: They were acts of war by a foreign enemy trying to coerce the U.S. government by killing Americans. You don't fight Osama bin Laden and his lieutenants the way you fight John Gotti or even Timothy McVeigh. Not unless you want to lose.

Normally, we have no trouble grasping the distinction between war and police work. We would never allow the cops to send tanks and attack helicopters into a city to kill as many bad guys as possible. But we ask soldiers to do it. A criminal who tries to kill a dozen Americans is entitled to all sorts of constitutional protections. If we catch Osama bin Laden, no one will read him his Miranda rights.

This should all be too obvious to mention. The unusual nature of the war on terrorism, however, seems to make some people forget what it is. What is forbidden in law enforcement may be permissible and necessary in waging war.

The detention of Mr. Padilla is a perfect illustration. Ordinarily, the cops can't lock up an American for planning a crime without evidence that will convince a court. But different rules apply in wartime.

There is no doubt that if a German soldier were found on American soil during World War II, he could be held without trial as a POW, or tried by military courts for violating the laws of war. In fact, one Supreme Court decision concerned eight German soldiers who sneaked into the country in 1942 to commit sabotage. They claimed they had a right to be tried in a civilian court, with the usual protections. The court responded: You've got to be kidding. They were tried by a military commission, and six were executed.

It doesn't change anything if the person is a U.S. citizen (as one of the Germans claimed to be). "Citizens who associate themselves with the military arm of the enemy government" and "enter this country bent on hostile acts are enemy belligerents," declared the court. Nor does it matter if those arrested actually carry out their plans - just arriving here with "hostile purposes" is enough.

All that fits what we've been told about Mr. Padilla. The fact that he is accused of working with a terrorist organization rather than a regular army doesn't give him special privileges. Nor does the fact that Congress hasn't declared war - a formality that is unnecessary under U.S. or international law.

Does that mean he should be denied his day in court? Actually, no. The Justice Department oversteps in claiming that enemy combatants who are citizens shouldn't be allowed even the barest court examination of their cases.

In an unconventional war being fought partly at home and under conditions that may make it hard to separate terrorists from mere crooks, some check on the executive branch is needed. Before it can hold an American as an enemy combatant, the government should be willing to go to court and present at least minimal evidence to support its classification. Otherwise, truly innocent people could suffer needlessly.

The administration has the right general approach to this war. But it needs to remember that sometimes, a vice is merely a virtue taken too far.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays in The Sun.

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