Detaining citizens as 'enemy combatants' -- a policy not spelled out in the
act -- is flawed, the legal scholar says.
By Richard B. Schmitt Times
Staff Writer
November 30, 2003
WASHINGTON — The Justice
Department's war on terrorism has drawn intense scrutiny from the left and the
right. Now, a chief architect of the USA Patriot Act and a former top assistant
to Atty. Gen. John Ashcroft are joining the fray, voicing concern about aspects
of the administration's anti-terrorism policy.
At issue is the
government's power to designate and detain "enemy combatants," in particular in
the case of "dirty bomb" plot suspect Jose Padilla, the Brooklyn-born former
gang member who was picked up at a Chicago airport 18 months ago by the FBI and
locked in a military brig without access to a lawyer.
Civil liberties
groups and others contend that Padilla — as an American citizen arrested in the
U.S. — is being denied due process of law under the Constitution.
Viet
Dinh, who until May headed the Justice Department's Office of Legal Policy, said
in a series of recent speeches and in an interview with The Times that he
thought the government's detention of Padilla was flawed and unlikely to survive
court review.
The principal intellectual force behind the Patriot Act,
the terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks,
Dinh has steadfastly defended the Justice Department's anti-terrorism efforts
against charges that they have led to civil-rights abuses of immigrants and
others. While the Patriot Act does not speak to the issue of enemy combatants,
his remarks still caught some observers by surprise.
In an interview,
Dinh, a professor at Georgetown University Law Center, said the Padilla case was
not within his line of authority when he was in the department, but that he
began to think about the issue later, and came to the conclusion that the
administration's case was "unsustainable."
Another top former Justice
Department official, Michael Chertoff, who headed the department's criminal
division, has said he believed the government should reconsider how it
designates enemy combatants.
"Two years into the war on terror, it is
time to move beyond case-by-case development," Chertoff said, according to an
excerpt from a speech he gave last month at the University of North Carolina at
Chapel Hill law school.
"We need to debate a long-term and sustainable
architecture for the process of determining when, why and for how long someone
may be detained as an enemy combatant, and what judicial review should be
available," he said.
Chertoff, a federal appeals court judge, also
mentioned at a judicial conference in Philadelphia this month the need to
reexamine procedures for combatants. "Inevitably, decisions of war are made with
imperfect information," he said. "Perhaps the time has come to take a more
universal approach."
Chertoff emphasized in an interview that he wasn't
venturing an opinion on the Padilla case, which is being litigated in the
federal courts, or criticizing the decisions that the government has made to
date in the case.
The comments by Dinh and Chertoff offer some of the
first public utterances by Justice Department officials who stood watch in the
weeks and months after Sept. 11 on how they felt about the work done by them and
their colleagues. The comments also illustrate the uncharted legal terrain they
and others were operating under.
Mark Corallo, a Justice Department
spokesman, declined to comment on the remarks by the former officials, citing
the fact that the Padilla case is pending in court. The department has staunchly
defended its anti-terrorism record and its use of the tools in the Patriot Act,
portions of which have been attacked as an abuse of government power by groups
as diverse as the American Civil Liberties Union and the American Conservative
Union.
Dinh first flagged his concerns in a speech he gave in September
at a human rights conference in The Hague sponsored by the Organization for
Security and Cooperation in Europe. He reiterated them this month during a panel
discussion with Chertoff and others on national security and civil liberties at
the conference in Philadelphia.
"The person next to me said, 'My God. He
is saying that the Padilla case is wrong!' " said Philip Heymann, a Harvard Law
School professor who also sat on the panel in Philadelphia and who agrees that
the administration view in the case is wrongheaded.
"There has to be
some form of judicial review and access to a lawyer," said Heymann, a deputy
attorney general in the Clinton administration. "That is what habeas corpus was
all about. That is what the Magna Carta was all about. You are talking about
overthrowing 800 years of democratic tradition."
In the interview, Dinh
said he believed the president had the unquestioned authority to detain persons
during wartime, even those captured on "untraditional battlefields," including
on American soil. He also said the president should be given flexibility in
selecting the forum and circumstances — such as a military tribunal or an
administrative hearing — in which the person designated an enemy combatant can
confront the charges against him.
The trouble with the Padilla case,
Dinh said, is that the government hasn't established any framework for
permitting Padilla to respond, and that it seems to think it has no legal duty
to do so.
"The president is owed significant deference as to when and
how and what kind of process the person designated an enemy combatant is
entitled to," Dinh said. "But I do not think the Supreme Court would defer to
the president when there is nothing to defer to. There must be an actual process
or discernible set of procedures to determine how they will be
treated."
Padilla was arrested at O'Hare International Airport on May 8,
2002, after arriving on a flight from Pakistan. Initially, he was taken to New
York and held as a "material witness," presumably to testify against
others.
The following month, he was transferred to a military prison in
South Carolina after Ashcroft announced that the government had determined that
he was part of an unfolding terrorist plot to explode a radioactive dispersion
device, or so-called dirty bomb.
Padilla's lawyers subsequently filed a
writ of habeas corpus saying that he was being illegally held. The Justice
Department responded by saying that the detention was a proper exercise of the
president's wartime powers. A decision is pending before a federal appeals court
in New York.
