The Magazine

Due Process for Terrorists?

From the January 12, 2004 issue: The case for a federal terrorism court.

Jan 12, 2004, Vol. 9, No. 17 • By THOMAS F. POWERS
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IN DECEMBER, the Bush administration suffered two legal setbacks in the war on terror. An opinion of the U.S. Court of Appeals for the Second Circuit challenged the government's claim that it has the right to detain terror suspect Jose Padilla (the "dirty bomber") without giving him access to the courts or charging him with a crime. Separately, the Ninth Circuit ruled that the nebulous legal status of some 600 Taliban and al Qaeda fighters captured in Afghanistan and detained at Guantanamo Bay, Cuba, must be open to judicial scrutiny. In both decisions the issue was whether, as the Ninth Circuit put it, "the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included . . . without permitting prisoners recourse of any kind to any judicial forum." The Supreme Court is already slated to consider this question in relation to Guantanamo (as presented in an earlier appeal from the D.C. Circuit), and it is widely expected to review the question as it pertains to U.S. citizens as well.

Though the Padilla and Guantanamo cases are different, both exhibit the uncomfortable mix of military and law enforcement considerations characteristic of the war on terror. Neither is adequately met by our existing criminal law or the law of war. The cases are also linked by the fact that Padilla and the Guantanamo detainees share the ill-defined designation "enemy combatants" (although Padilla is a U.S. citizen held on U.S. soil, while the Guantanamo detainees are foreigners held at a U.S. naval base abroad). More than two years into an unprecedented and open-ended campaign against terrorism, it appears that we still lack the legal framework necessary to effectively process those we are compelled to apprehend.

Civil libertarians at home and abroad have been raising a clamor about this for some time. Faced with their criticism, the government has not responded effectively. It has neither mounted a vigorous rebuttal, nor laid to rest citizens' legitimate concerns, instead leaving the issues to be resolved by the courts. At best, the administration's strategy is defensive and guaranteed to fuel endless controversy.

At first glance, the explanation for this state of affairs might seem to be that offered by some of the critics themselves: that the Bush administration fits the standard pattern of government in time of war, bending to the demands of crisis and favoring security at the expense of liberty.

The truth is different. Morally intimidated and bullied by civil libertarian ideologues, partisan opportunists, and a press almost universally hostile on these issues--yet having accepted, along with the rest of the country, the lessons of Korematsu, the Red Scare, and the due process revolution of the 1960s--administration officials seem, not surprisingly, to prefer to evade the debate or retreat behind the rhetoric of "security." The administration has failed to make its case well or to take modest actions that could strengthen its case. This in turn encourages the critics and deepens the government's reluctance to touch a set of issues on which it feels it can only lose.

The time has come for the government to break this poisonous cycle. Balancing liberty and security in a way that is plain and understandable to all is a tough job, but it must be attempted. The centerpiece of a Bush administration civil liberties offensive should be creative institutional reform. A new terrorism court is the place to start.

ORDINARY CRIMINAL COURTS are not designed for trying terrorism suspects. As a practical matter, they do not routinely provide the kind of security for witnesses, judges, and jurors that is required where terrorist attack and reprisal are a concern. More important, they cannot meet the need for secrecy that may arise from the use of sensitive testimony derived from confidential sources. Normal due process rights, including the right of defendants to confront witnesses against them, must be managed very carefully lest they undermine anti-terrorism efforts. Similarly, where potential defendants are apprehended on foreign battlefields, some standard Fourth, Fifth, and Sixth Amendment rights (having to do with search warrants, Miranda warnings, the right to have an attorney present while being questioned) and other rules pertaining to evidence (the exclusionary rule, the prohibition of hearsay evidence) are clearly out of place.