Combatants or Criminals? How Washington Should Handle Terrorists

On the face of it, Roth's three-part test sounds attractive. It allows resort to the rules of war against suspects only when the violence suffered by the United States is so intense and sustained that it amounts to an armed attack, when the suspects actively engage in plans for the attack, and when "law enforcement means are unavailable" to deal with them. But "unavailability" means different things to different people, and the foreign tribunals to which Roth proposes we defer often have idiosyncratic values or could be corrupt or intimidated. And while such ambiguities are debated, dangerous suspects might slip away.

Consider the case of Jose Padilla, a Chicago youth-gang graduate allegedly interested in "dirty bombs," who could not have been effectively countered under criminal law. According to the U.S. government affidavit filed in federal court, Padilla traveled to Afghanistan in 2001 to see a senior al Qaeda military planner named Abu Zubaydah, then went to Pakistan for explosives training. He agreed to return to the United States to stage multiple simultaneous bombings at gas stations and hotels and pick out targets for a radiological "dirty bomb" attack. Padilla flew back from Pakistan via Switzerland with agents in hot pursuit and, on landing in Chicago in May 2002, was immediately detained as a "material witness" for a federal grand jury.

The limitations of criminal law soon became clear. The Fifth Amendment privilege against self-incrimination meant that Padilla did not have to testify, and could not be held, unless the government agreed to protect him against any future criminal liability. Arresting Padilla on criminal charges was not an option, because the lead witness against him is Zubaydah, who remains in custody abroad as a crucial source of information on al Qaeda's future plans. The only alternative under standard criminal law was to open the jail door, let Padilla go, and hope that the police tail would not lose him.

To overcome this obstacle, the Bush administration decided to detain him as an enemy combatant under the law of war. Padilla was, after all, a saboteur behind enemy lines planning an act of war against his own country in cooperation with an international terrorist network. A federal district court agreed, although it granted Padilla access to defense counsel to assist in a habeas corpus hearing. But an appellate court has reversed that decision, ruling that the Bush administration did not have the power to detain any U.S. citizen as an enemy combatant, even under these dire circumstances, without express authorization from Congress. The case is now before the Supreme Court.

Roth says we should not cavil when "the rule of law happens to produce inconvenient results." But the potential success of a dirty bomb plot is more than just an "inconvenient result." And it is a result not worth risking when, thanks to another applicable set of laws, we can protect ourselves against it.

RUTH WEDGWOOD is Edward Burling Professor of International Law and Diplomacy at Johns Hopkins University's School of Advanced International Studies.

Roth replies

Ruth Wedgwood attacks a straw man when she says that I find criminal law "sufficient for dealing with the terrorists." Of course force is sometimes required. And when armed conflict breaks out, as in Afghanistan or Iraq, war rules appropriately apply.

But Wedgwood also wants to invoke war rules in settings far from these traditional battlefields. In her view, the "war against terrorism" is open-ended and global, allowing the U.S. government unilaterally to designate terrorism suspects as "enemy combatants," at home or abroad, and to summarily detain or kill them. That radical proposition jettisons the most basic guarantees of criminal justice, leaving our liberty and our lives protected only by the government's professions of good faith.

Wedgwood trivializes the issue by conjuring up images of "defense lawyer[s] sent to the battlefield," which no one advocates. The real issue is whether suspects are entitled to a lawyer and due process away from the traditional battlefield, in Peoria or Manchester. The Bush administration has decided on its own that they are not. The congressional resolution that Wedgwood cites never addressed the matter.

Wedgwood contends that the U.S. government is entitled to detain Jose Padilla, the alleged dirty bomber, indefinitely, without charge or trial, because another suspect, held incommunicado under "stress and duress" interrogation, has named him. Such "evidence" would never be admitted in a U.S. court of law, let alone establish guilt beyond a reasonable doubt. Yet Wedgwood dismisses these safeguards of criminal justice as unreasonable obstacles rather than recognizing them as essential protections against government overreaching.

If Padilla were really an "enemy combatant," the government need not have detained him; it could have killed him as he stepped off the plane in Chicago. Wedgwood insists that "no one is advocating shootouts at the landing gates of O'Hare Airport." But the Bush administration has never rejected the power to kill "enemy combatants" wherever it finds them, which is precisely the treatment the rules of war allow. If we are uncomfortable applying these rules far from traditional battlefields -- as even Wedgwood seems to be -- the problem lies not in these long-established norms but in the designation of non-battlefield suspects as enemy combatants.