In terror cases, Bush administration is setting the rules

November 27, 2005|By NEW YORK TIMES NEWS SERVICE

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

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

The upshot of that approach, underscored by the decision in 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.

Pointing to 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 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."

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 Friday. "The important thing is for someone not to come away thinking this whole process is arbitrary, which it is not."

Among the factors the government considers, she said, are "national security interests, the need to gather intelligence and the best and quickest way to obtain it, the concern about protecting intelligence sources and methods and ongoing information-gathering, the ability to use information as evidence in a criminal proceeding, the circumstances of the manner in which the individual was detained, the applicable criminal charges, and classified-evidence issues."

Lawyers for people in terrorism investigations say a list of factors to be considered cannot substitute for standards announced in advance.

The courts have given the executive branch substantial but not total deference, often holding that the president has the authority to designate enemy combatants but allowing those detained to challenge the factual basis for the administration's determinations. Some courts have suggested that a detainee's citizenship, the place he was captured and whether he was fighting American troops should play a role in how aggressively the courts review enemy-combatant designations.

A look at the half-dozen most prominent terrorism detentions and prosecutions does little to illuminate the standards that have informed the government's decisions.

One American captured on the battlefield in Afghanistan was held in the United States as an enemy combatant. Another was prosecuted as a criminal. One foreigner seized in the United States as a suspected terrorist is being held as an enemy combatant without charges in a Navy brig in Charleston, S.C. Others have been prosecuted for their crimes.

In three high-profile terrorism cases, the government obtained convictions in federal court. Zacarias Moussaoui, a French citizen, pleaded guilty to taking part in the conspiracy that led to the Sept. 11 terrorist attacks and faces the death penalty. Richard C. Reid, who is British, pleaded guilty to trying to blow up a jet over the Atlantic with bombs in his shoes and is serving a life term. And John Walker Lindh, the California man who pleaded guilty to aiding the Taliban, is serving 20 years.

In three other cases, the administration designated terrorism suspects as enemy combatants who may be detained by the military indefinitely without charge. One, Yaser Esam Hamdi, an American citizen of Saudi descent, was released and sent to Saudi Arabia after the Supreme Court gave him the right to contest the government's claims. A second American, Padilla, was transferred to the custody of the Justice Department.

The only remaining enemy combatant known to be detained in the United States, Ali Saleh Kahlah al-Marri, traveled the same road as Padilla, but in the opposite direction. "Al-Marri is precisely the flipside of Padilla," said Lawrence S. Lustberg, one of al-Marri's lawyers.

Baltimore Sun Articles
|
|
|
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.